Opinion
18598/1996.
Decided December 20, 2010.
Howard Sklar, Esq., Attorney for Plaintiff, Carle Place, NY.
Anthony A. Capetola, Esq., Attorney for Defendant, Williston Park, NY.
Recitation as required by CPLR § 2219(a), of the papers considered in review of the Order to Show Cause for an order (1) punishing and adjudging the Plaintiff, as and for contempt of court for failure to comply with the parties' Stipulation of Settlement, (2) directing Plaintiff to produce proof of the existence of a health insurance policy obtained by the Plaintiff for the benefit of the parties' minor child, (3) directing Plaintiff to provide all necessary documents and take all necessary action to QDRO Plaintiff's pension, (4) directing Plaintiff to pay the entire cost for Lexington Pension to prepare the QDRO, (5) granting Defendant an upward modification in child support for the parties unemancipated child, (6) directing Plaintiff to pay for in its entirety or in the alternative to contribute pro rata, the college expenses of the parties' unemancipated child, (7) granting to Defendant counsel fees in the amount of $5,000.00 and (8) granting Defendant such other, further and different relief as the court may deem just and proper:
Papers Numbered
1-3 4a-4f 5-6 7a-7b 8 9a-9d
Order to Show Cause, Affirmation and Affidavit annexed..................................... Exhibits Annexed to Order to Show Cause ................................................... Affidavit in Opposition and Affirmation annexed ........................................... Exhibits Annexed to Affidavit in Opposition ................................................. Reply Affidavit ........................................................................... Exhibits Annexed to Reply Affidavit .........................................................Upon the foregoing cited papers, the Decision/Order on the Court is as follows:
The Judgment of Divorce was signed on May 13, 1998. There is one child of the marriage, Michael, born January 21, 1992.
Defendant-wife (hereinafter "Defendant") files an Order to Show cause, dated August 11, 2010, for an order: (1) punishing and adjudging Plaintiff, as and for contempt of court pursuant to DRL § 245 and Articles 756, 761 and 770 of the Judiciary Law by reason of his failure to comply with the parties' Stipulation of Settlement, dated February 23, 1998, and incorporated in the parties' Judgment of Divorce, dated May 13, 1998, wherein Plaintiff unlawfully and unilaterally terminated all health insurance benefits for the parties' minor child; (2) directing Plaintiff to produce the existence of a health insurance policy obtained by the Plaintiff and for the benefit of the parties' minor child; (3) directing Plaintiff to provide all necessary documents and to take all necessary action to QDRO Plaintiff's pension with the United States Postal Services; (4) directing Plaintiff to pay the entire cost for Lexington Pension to prepare the QDRO so that Defendant receives her equitable share of Plaintiff's pension; (5) granting Defendant an upward modification in child support for the support and maintenance of the parties unemancipated child; (6) directing Plaintiff to pay for in its entirety or in the alternative to contribute pro rata, the college expenses of the parties' unemancipated child; (7) granting Defendant counsel fees in the sum of $5,000.00 in connection with the enforcement of the parties' Stipulation of Settlement and Judgment of Divorce, including preparation of the instant motion; and (8) granting Defendant such other, further and different relief as the court may deem just and proper.
Plaintiff filed an Affidavit in Opposition arguing that: (1) Plaintiff complied with the Stipulation of Settlement and Judgment of Divorce in that he provide health insurance for the parties' minor child while health insurance was available through his employer and the child is currently covered under Defendant's husband's health insurance policy; (2) Defendant has failed to establish a change in circumstances to warrant an upward modification of child support; (3) Plaintiff is financially unable to contribute to the child's college expenses; (4) the parties should equally divide the cost of the QDRO; (5) Defendant's application for counsel fees should be denied; and (6) requests counsel fees in the amount of $4,000.00. Defendant filed a Reply Affidavit.
On November 23, 2010, neither Plaintiff nor his counsel appeared. Defendant and her counsel appeared. The Court heard oral argument on the instant motion.
Upon the papers and after argument, the Court makes the following findings and orders.
CONTEMPT
New York Domestic Relations Law § 245 provides that where a spouse in an action for divorce or an action to enforce a judgment of divorce defaults in paying any sum of money as required by the judgment and it presumptively appears to the satisfaction of the court, that payment cannot be enforced pursuant to DRL § 243, DRL § 244, or CPLR § 5241 or CPLR § 5422, the aggrieved spouse may make application to punish the defaulting spouse for contempt pursuant to Judiciary Law § 756.
New York Judiciary Law § 756 provides that an application for civil contempt must be commenced by notice of motion or an order to show cause. The statute further provides that the face of the application for civil contempt must include language that the purpose of the hearing is to punish the accused for contempt of court and punishment may consist of fine, imprisonment or both.
New York Judiciary Law § 761 provides that an application to punish for contempt in a civil contempt proceeding must be served upon the accused, unless the court or judge orders service upon the accused's attorney.
New York Judiciary Law § 770 provides that upon the return of an application for contempt, the court shall inform the accused that he or she has the right to the assistance of counsel and if the accused is financially unable to obtain counsel, the court may assign counsel to represent the offender. The statute further provides that if the court determines that the accused committed the charged offense and that it was "calculated to, or actually did defeat, impair, impede or prejudice the rights or remedies of a party to an action or proceeding" the court, judge or referee must make a final order directing the accused to be punished by fine, imprisonment or both, depending on the nature of the case. If the application for contempt is made under Article 19 of the Judiciary Law in pursuance of DRL § 245 for a final order directing punishment for failure to pay alimony, maintenance or counsel fees pursuant to an order of the court in a matrimonial proceeding and the defaulting spouse satisfies the court or judge that she or he has no means, property or income to comply with the terms of the order at that the time, the court may deny the application to punish the defaulting spouse, without prejudice to the applicant's rights and without prejudice to a renewal of the application upon notice and after proof that the financial condition of the defaulting spouse has changed.
In the instant Order to Show Cause, Defendant seeks an Order punishing and adjudging Plaintiff in contempt of court by reason of his wilful failure and refusal to comply with the parties' Stipulation of Settlement, detailed on the record on February 23, 1998, and incorporated, but not merged into the Judgment of Divorced dated May 13, 1998, wherein Plaintiff unlawfully and unilaterally terminated all health insurance benefits for the parties' minor child. On November 12, 1997, the parties detailed a portion of their Stipulation of Settlement on the record. Counsel for the Plaintiff stated, "The parties furthermore stipulate and agree that Mr. Crispino will continue to maintain health insurance through his present job for his son." Said Judgment of Divorce provides:
ORDERED AND ADJUDGED that the minor child shall be enrolled and entitled to receive health insurance as described below: continued coverage under the medical plan that the Plaintiff currently has with his employer the United States Postal Service, and it is further
ORDERED AND ADJUDGED that the relative legally responsible to supply health insurance coverage benefits is the Plaintiff, and it is further
ORDERED AND ADJUDGED that the relative legally responsible to supply health insurance benefits is eligible under the following group health insurance plan or plans:
Group Health Plan: United States Postal Service and shall provide health insurance to the child until the age of 21 years or as long as he is employed by the United States Postal Service.
Plaintiff argues that pursuant to the parties' Stipulation of Settlement and Judgment of Divorce, he was required to provide health insurance for the parties' child through the coverage provided through his then-employer, the United States Postal Service. Plaintiff further argues that upon his retirement from the United States Postal Service, he was no longer entitled to health insurance for himself or the parties' minor child. Plaintiff contends that upon the loss of his health insurance coverage he obtained private health insurance coverage for the parties' child for approximately two to three years. Plaintiff argues that upon discussion with Defendant regarding health insurance benefits for the child, the parties' agreed that Defendant would enroll the child under her husband's insurance coverage and Plaintiff would contribute additional money to the child's extracurricular baseball expenses. Plaintiff states that the parties' child has been covered under Defendant's new husband's health insurance benefits for approximately the past four years. Defendant does not dispute that the parties' child is covered under her new husband's health insurance policy for the past four years.
Plaintiff provided health insurance coverage for the parties' child through his employer, the United States Postal Service for the duration of his eligibility to receive health insurance benefits. Upon Plaintiff's retirement and subsequent loss of benefits, Plaintiff provided private health insurance for the child, for a period of approximately two to three years. It is undisputed that the parties' child has received health insurance benefits through Defendant's new husband's employment at no extra cost to Defendant. Notably, within the past four years, Defendant did not commence an enforcement proceeding to direct Plaintiff to provide health insurance coverage for the parties' minor child. Additionally, exhibit "C" annexed to Defendant's Order to Show Cause, includes photocopies of child support checks, for several months during the period of September 2007 through January 2010, for an additional $100.00 each month, which is consistent with Plaintiff's argument that the parties' agreed to enroll the child under Defendant's new husband's health insurance coverage in exchange for additional contribution to the child's extracurricular baseball activities. Plaintiff has shown sufficient proof that he has complied with the parties's Stipulation of Settlement, dated November 12, 1007, which was incorporated but not merged into the Judgment of Divorce, dated May 13, 1998. Accordingly, Defendant's application to punish and adjudge Plaintiff in contempt for failure to provide health coverage for the parties' minor child is denied. Based upon Defendant's acceptance of the additional payments in lieu of enforcing the terms of the Judgment for more than four years, Defendant is estopped from now seeking relief of contempt.
Additionally, as the parties' minor child is currently receiving health insurance benefits through the Defendant's new husband's health insurance policy, Defendant's application to direct Plaintiff to produce proof of the existence of a health insurance policy obtained by the Plaintiff and for the benefit of the parties' minor child is denied. It is undisputed that Plaintiff has not provided health insurance coverage for the parties' child for approximately four years because the child is currently covered under a health insurance policy at no additional cost to either Plaintiff or Defendant.
PLAINTIFF'S PENSION
Defendant further requests an order directing Plaintiff to provide all necessary documents and to take all necessary action to QDRO Plaintiff's pension with the United States Postal Service. On February 23, 1998, the parties detailed the portion of their Stipulation of Settlement regarding equitable distribution on the record. Counsel for Plaintiff stated, "With regards to the pension that the plaintiff currently has with the United States Postal Service, the parties agree that said pension shall be divided by means of a QDRO order in accordance with the provisions of Majauskas v. Majauskus." The Judgment of Divorce, dated May 13, 1998, which incorporated, but did not merge, the Stipulation of Settlement provided:
ORDERED AND ADJUDGED that the Plaintiff shall pay to the Defendant a share of all payments hereafter received by the Plaintiff under the pension of the United States Postal Service in accordance with the formula established in the case if Majauskas v. Majauskas.
Both the Stipulation of Settlement and Judgment of Divorce are silent with respect to payment for the preparation of the QDRO and the responsibility of providing the documents needed to prepare the QDRO.
The pension with the United States Postal Service is titled in Plaintiff's name. Plaintiff is in the best position to obtain the necessary documents, as he was formerly employed with the United States Postal Service and may easily access the documents and information needed to prepare the QDRO. Defendant's application to direct Plaintiff to provide all necessary documents and to take all necessary action to QDRO Plaintiff's pension with the United States Postal Service is granted.
Defendant additionally requests that Plaintiff pay the entire cost for Lexington Pension to prepare the QDRO so that Defendant may receive her equitable share of Plaintiff's pension. Defendant contends that Plaintiff has refused to discuss his pension with her and has refused to execute any of the necessary documents to effectuate the division of the pension. Plaintiff denies Defendant's allegations and requests that Defendant pay the entire cost to prepare the QDRO.
Both the parties' Stipulation of Settlement and Judgment of Divorce is silent regarding the payment for the preparation of the QDRO. Defendant has not submitted any evidence to establish her allegations that Defendant has refused to execute the necessary documents to effectuate the division of Plaintiff's pension. The Court finds that the parties shall share the cost of the QDRO preparation equally.
UPWARD MODIFICATION
The Court of Appeals has held that courts should not freely disregard Stipulations of Settlements. Where parties include child support provisions in a separation agreement, the court must consider the provisions "as between the parties and the stipulated allocation of financial responsibility should not be freely disregarded. It is to be assumed that the parties anticipated the future needs of the child and adequately provided for them." ( Boden v Boden, 42 NY2d 210, 213-214). The Court continued, "unless there has been an unforeseen change in circumstances and a noncomitant showing of need, an award for child support in excess of that provided for the in the separation agreement should not be made solely on an increase in cost where the agreement was fair and equitable when entered into" ( Id. at 213). Later, in Brescia v. Fitts ( 56 NY2d 132), the Court held that an upward modification of child support provisions in a separation agreement may be warranted upon a showing that the movant's income combined with the other parent's child support obligation is not adequate to meet the child's needs.
In the instant matter, Defendant argues that the child's expenses have increased and throughout the years, Plaintiff voluntarily provided additional support for the child. Annexed as exhibit "C" to her Order to Show Cause, Defendant attached child support checks from several months from the period of September 2007 through January 2010. Additionally, Defendant included a statement of net worth indicating monthly expenses of $11,148.33 and a weekly income of $200.00, totaling an annual income of $10,400.00. Notably, Defendant's statement of net worth does not include the amount of child support received from Plaintiff. Plaintiff's statement of net worth indicates monthly expenses in the amount of $5,717.50 and monthly income in the amount of $5,200.00.
Other than copies of receipts for the minor child's college expenses attached to her Reply Affidavit, Defendant failed to demonstrate that the amount of child support as provided in the parties' Stipulation of Settlement and Judgment of Divorce is inadequate to meet the child's needs. Furthermore, as Defendant has failed to establish how she meets her monthly expenses, in the amount of $11,148.33 with an annual income of $10,400.00, exclusive of the amounts received in child support, the Court is unable to determine if Defendant's actual income combined with Plaintiff's child support obligation is adequate to meet the child's needs. Furthermore, while Defendant argues that the child's needs have increased throughout the years, she has failed to provide evidence to establish this claim ( See Caristo v Caristo, 186 AD2d 619 [2nd Dept 1992]). Defendant failed to establish circumstances to warrant an upward modification of Plaintiff's child support obligation. Accordingly, Defendant's application for an upward modification of child support is denied.
COLLEGE EXPENSES
New York Domestic Relations Law § 240 (1-b)(c)(7) provides that a court may direct a parent to contribute to a child's private college expenses, having regard for the circumstances of the case, the respective parties and the best interests of the child. Courts have held that in the absence of a voluntary agreement or the lack of a provision in a Stipulation of Settlement, the court may exercise its discretion in directing a non-custodial parent to pay a portion of private college expenses ( See Cohen v Cohen, 203 AD2d 411 [2nd Dept 1994]). In exercising its discretion, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children and the requirements of justice.
In the instant matter, Defendant is requesting that Plaintiff pay in its entirety or his pro rata share of the child's educational expenses. Plaintiff argues that he was not consulted on the child's choice of college and is financially unable to contribute to the child's college expenses. The parties' minor child is currently a freshman at a private college in Massachusetts. Defendant has established that after loans, grants and work study, the child's college expenses amount to $14,652.00. Defendant also claims an additional $1,468.74 over the course of three months for books, school supplies and other items for the child. Defendant has established that the parties' minor child has excelled while attending a local public high school. Defendant has failed to provide any information regarding whether the parties attended private colleges or earned college degrees.
Furthermore, it is difficult for this Court to determine the financial ability of these parties to pay for the child's college expenses. While in her Reply Affirmation Defendant indicates that Plaintiff owns several "lucrative businesses," earns substantial cash income, owns "at least" two residences on Long Island, owns a vacation home and owns several classic automobiles, Defendant has failed to produce any evidence to establish her claim. Additionally, according to the statements of net worth provided by both parties, both parties have expenses that exceed their income. Plaintiff claims to have an income of $5,200.00, but expenses in the amount of $5,717.00. Defendant claims a yearly income of $10,400.00, exclusive of child support payments, but monthly expenses in the amount of $11,148.00.
It is undisputed that it is in the child's best interest to attend college. Neither party disputes that they want the best for their son and wish to see him succeed. While it is well recognized that both parents have an obligation to support their child, an order directing a non-custodial parent's contribution towards private college expenses is within the court's discretion. This Court is unable to determine the actual financial resources of the parties, as both parties' expenses exceed their incomes. Accordingly, Defendant's application that Plaintiff pay in its entirety or his pro rata share of the child's private college expenses is denied.
COUNSEL FEES
Defendant further requests counsel fees in the amount of $5,000.00. Plaintiff opposes an award of counsel fees and seeks counsel fees in the amount of $4,000.00 based upon the frivolous nature of Defendant's application. Defendant presented her retainer agreement, an attorney affirmation and a bill for legal fees in the amount of $6,340.00. Plaintiff failed to submit any documents regarding his legal fees.
New York DRL § 237 provides that a court may award counsel fees in certain matrimonial proceedings. The statute requires courts to consider the circumstances of the case and of the respective parties. DRL § 238 also provides that the court may award counsel fees in enforcement proceedings.
As previously noted, it is difficult to determine the financial resources of the parties. While Defendant claims that Plaintiff has substantial income, she has failed to present evidence to establish her claim. Furthermore, both parties' expenses exceed their incomes. . Accordingly, both parties' application for counsel fees is denied. Both parties are directed to pay their respective counsel fees.
UNREIMBURSED MEDICAL EXPENSES
Notably, in her Reply Affirmation, Defendant argues that she has incurred medical expenses for the parties' child in the amount of approximately $1,079.00. Defendant annexed copies of bills for the child's eye care. Pursuant to the Stipulation of Settlement and Judgment of Divorce, Plaintiff is directed to pay fifty percent of the child's unreimbursed medical expenses. Defendant is directed to provide copies of bills of the child's unreimbursed medical expenses. Upon receipt, Plaintiff is directed to pay his fifty percent share of the child's unreimbursed medical health expenses within fifteen days of receipt of child's unreimbursed medical bills.