Opinion
Index No. 50413/2015
08-08-2023
DD, Plaintiff, v. ID, Defendant.
Counsel for the Plaintiff Suzanne M. Demeyer, Firm Name: CAMMARATA & DE MEYER, P.C. Counsel for the Defendant: Maria Coffinas, Firm Name: COFFINAS & LUSTHAUS, P.C.
Unpublished Opinion
Counsel for the Plaintiff Suzanne M. Demeyer, Firm Name: CAMMARATA & DE MEYER, P.C.
Counsel for the Defendant: Maria Coffinas, Firm Name: COFFINAS & LUSTHAUS, P.C.
HON. RONALD CASTORINA, JR., JUSTICE OF THE SUPREME COURT.
The following e-filed documents listed on NYSCEF (Motion #018) numbered 172-220 were read on this motion.
Upon the foregoing documents, and after oral argument conducted in court on June 14, 2023 on Motion Sequence #018, Motion Sequence #018 is resolved and therefore, it is hereby, ORDERED, that Defendant's request to vacate the Order dated March 7, 2023 (which was granted on default), pursuant to CPLR § 5015 [a] [1] is GRANTED and Motion Sequence #012, Motion Sequence #015, and Motion Sequence #17 are restored to the calendar and scheduled for oral argument on September 14, 2023 at 9:30 AM, and it is further;
ORDERED, that Motion Sequence #013, Motion Sequence #014, and Motion Sequence #016 are restored to the calendar and summarily withdrawn by the Defendant, and it is further;
ORDERED, that Defendant's request for leave to reargue/renew Motion Sequence #012 and Motion Sequence #017 pursuant to CPLR § 2221, is DENIED as motions have been restored to the active calendar and relief requested is moot, and it is further;
ORDERED, Defendant's request to recalculate child support is GRANTED and Defendant is to pay Plaintiff child support retroactive to the date of this motion, April 4, 2023, in the monthly sum of $3,116.04 [Three Thousand One Hundred and Sixteen Dollars and Four Cents, and it is further;
ORDERED, that Defendant's request to recalculate the parties' pro rata shares is GRANTED as follows: Plaintiff's pro rata share is 21% and Defendant's pro rata share is 79%, and it is further;
ORDERED, that Defendant's request for a credit for any over payments of child support resulting from the recalculation of child support retroactive to the date of this motion on April 4, 2023 is DENIED without prejudice to renew, and it is further;
ORDERED, Defendant's request that Plaintiff to be directed to pay 100% of all out-of-network health, medical, therapy, optometry and orthodontic providers she selects to provide services to the children is DENIED with prejudice, and it is further;
ORDERED, that Plaintiff is to pay her 21% pro rata share retroactive to the date of this motion, April 4, 2023 for all in-network and out-of-network health, medical, therapy, optometry and orthodontic providers unreimbursed expenses for the children, and it is further;
ORDERED, that Defendant is to pay his 79% pro rata share retroactive to the date of this motion, April 4, 2023, for all in-network and out-of-network health, medical, therapy, optometry and orthodontic providers unreimbursed expenses for the children, and it is further;
ORDERED, that the cost for any out-of-network health, medical, therapy, optometry and orthodontic providers accrued prior to the recalculation of the parties' pro rata shares effective the date of this motion, April 4, 2023, shall be paid in accordance with the terms in the stipulation dated April 13, 2018 with Plaintiff responsible for one-third of the cost and Defendant responsible for two-thirds of the cost, and it is further;
ORDERED, that Defendant's request that Plaintiff to be directed to pay 100% of college expenses or in the alternative if Defendant is directed to pay a pro rata share of SUNY college expenses that he be given a dollar-for-dollar credit against his child support obligation is DENIED with prejudice, and it is further;
ORDERED, that Plaintiff is to pay one-third of all the children's college expenses up to a SUNY cap and the Defendant is to pay two-thirds of all the children's college expenses up to a SUNY cap, and it is further;
ORDERED, that the Defendant is credited two-thirds of the room and board portion of college expenses as applied to that portion of the child support obligation attributable to the particular child in college, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Procedural History
Judgment of Divorce was granted by the Supreme Court on July 20, 2018. Defendant brought Post-Judgment Motion Sequence #018 by Order to Show Cause on April 4, 2023. Defendant seeks (a) the Order dated March 7, 2023, which was granted on default, to be vacated pursuant to CPLR § 5015 [a] [1]; (b) leave to renew Plaintiff's Order to Show Cause for Contempt (Motion Sequence #012) and Plaintiff's Notice of Cross Motion for Violation (Motion Sequence #017) pursuant to CPLR § 2221 [e], and upon renewal, denying the relief sought by Plaintiff and granting the relief sought by Defendant; and/or (c) leave to reargue Plaintiff's Order to Show Cause for Contempt (Motion Sequence #012) and Plaintiff's Notice of Cross Motion for Violation (Motion Sequence #017) pursuant to CPLR § 2221 [d], and upon renewal, denying the relief sought by Plaintiff and granting the relief sought by Defendant; and (d) recalculating the child support obligation and pro rata shares pursuant to the Financial Settlement Agreement and crediting the Defendant for his overpayments.
Defendant further seeks (e) Plaintiff to be directed to pay 100% of all out-of-network health, medical, therapy, optometry and orthodontic providers she selects to provide services to the children; (f) Plaintiff to be directed to pay 100% of college expenses due to her violation of the joint legal custody provision of the Financial Settlement Agreement; or in the alternative if Defendant is directed to pay a pro rata share of SUNY college expenses that he be given a dollar-for-dollar credit against his child support obligation; and (g) for such other and further relief as the Court may deem just and proper.
Plaintiff filed opposition on May 22, 2023. Defendant filed reply on June 12, 2023. Oral argument was heard by the Court on Motion Sequence #018 on June 14, 2023.
II. Facts
Parties were married on October XX, 2001. Three children were born of the marriage, to wit: GD, born June XX, 2003, ED, born August XX, 2006, and LD, born January XX, 2011. Plaintiff commenced an action for divorce on May 15, 2015. After protracted litigation, parties entered a Custody and Parenting Time Stipulation, dated January 18, 2018, in which the parties have joint legal custody with Plaintiff/Mother having residential custody (NY St Cts Filing [NYSCEF] Doc No. 177). The stipulation further provided Defendant with a regular parenting schedule, including alternating religious and other holidays.
On April 13, 2018, parties entered into a Stipulation resolving the financial issues (NY St Cts Filing [NYSCEF] Doc No. 178). A Judgment of Divorce was granted on July 20, 2018 (NY St Cts Filing [NYSCEF] Doc No. 179).
Plaintiff filed Motion Sequence #012 on February 9, 2022, for contempt. (NY St Cts Filing [NYSCEF] Doc Nos. 4-16). On June 8, 2022, Defendant filed Motion Sequence #013 seeking a modification of support. (NY St Cts Filing [NYSCEF] Doc Nos. 82-87). On September 15, 2022, Defendant filed Motion Sequence #014 alleging contempt and other allegations pertaining to the parties' children. (NY St Cts Filing [NYSCEF] Doc Nos. 117-119). Plaintiff filed Motion Sequence #015 seeking preclusion on September 21, 2022. (NY St Cts Filing [NYSCEF] Doc No. 120-123). On September 21, 2022, Defendant filed Motion Sequence #016 seeking a change of venue. (NY St Cts Filing [NYSCEF] Doc No. 134). Plaintiff filed cross Motion Sequence #017 on November 14, 2022, seeking enforcement of the terms of the Judgment of Divorce. During the period of post judgment motion practice, the Defendant proceeded pro se.
On January 25, 2023, at 11:30 AM this matter was called before the Court and the Defendant failed to appear. (tr at 2-3 [January 25, 2023]). Neither the Defendant nor any representative of the Defendant contacted the Court to advise it as to the whereabouts of the Defendant resulting in the Defendant's default (see id). The matter was transferred to part MP-7 from the IDV part upon the recusal by the Hon. Catherine M. DiDomenico and this was the first appearance in Part MP-7. Defendant was advised of the change in part by the IDV part prior to the appearance on January 25, 2023 (tr 3, lines 8-11 [January 25, 2023]).
The Court granted Plaintiff's Motion Sequence #012 and Plaintiff's Motion Sequence #017 in their entirety (NY St Cts Filing [NYSCEF] Doc No. 169). The Court denied Defendant's Motion Sequence #013, Defendant's Motion Sequence #014, and Defendant's Motion Sequence #016 in their entirety (see id). Plaintiff's Motion Sequence #015 was denied as moot (see id).
Defendant asserts that since the commencement of the divorce action in this matter on May 15, 2015, there were numerous court appearances before two different judges, Hon. Barbara Panepinto and Hon. Catherine M. DiDomenico, as well as Special Referee Soos, and the Defendant attended every court appearance except for the court appearance held on January 25, 2023. (NY St Cts Filing [NYSCEF] Doc No. 174). Defendant maintains he was not aware "that a court appearance was scheduled before this Court for January 25, 2023 with respect to the open motions (Motions #12 through #17)" (see id).
Plaintiff contends that the "Defendant's refusal to hire an attorney despite his absolute ability to afford one, his disrespectful and outrageous behavior only delayed these proceedings and cost your [Plaintiff] thousands of dollars when all I was asking for was compliance with our Stipulation of Settlement" (NY St Cts Filing [NYSCEF] Doc No. 196).
During oral argument on June 14, 2023, Defendant consented to withdraw all motions to wit: Motion Sequences #013, Motion Sequences #014, and Motion Sequences #016, should the Court vacate Defendant's default.
III. Vacating a Default
"Although the courts have adopted a liberal policy with respect to vacating defaults in matrimonial actions, it is still incumbent upon a defendant seeking to vacate a default judgment pursuant to CPLR § 5015 [a] [1] to demonstrate a reasonable excuse for his or her default and the existence of a potentially meritorious defense" (see Ward v Ward, 172 A.D.3d 955 [2d Dept 2019] citing Farhadi v Qureshi, 105 A.D.3d 990 [2d Dept 2013]; Dankenbrink v Dankenbrink, 154 A.D.3d 809 [2d Dept 2017]).
"[E]ven though the law favors the vacating of defaults in matrimonial actions (see Anderson v. Anderson, 144 A.D.2d 512 [2d Dept 1988] citing Lucas v. Lucas, 109 A.D.2d 781 [2d Dept 1985]; Antonovich v. Antonovich, 84 A.D.2d 799 [2d Dept 1981]), it is well settled that a party seeking to be relieved of a default judgment and ancillary orders resulting therefrom must establish a reasonable excuse for the default and the existence of a meritorious case (see id citing Junowicz v. Junowicz, 132 A.D.2d 527 [2d Dept 1987]).
"The determination of what constitutes a 'reasonable excuse' lies within the sound discretion of the Supreme Court (see Capurso v Capurso, 134 A.D.3d 974 [2d Dept 2015] citing Eastern Sav. Bank, FSB v Charles, 103 A.D.3d 683 [2d Dept 2013]; Rivera v. Komor, 69 A.D.3d 833 [2d Dept 2010]). "A motion to vacate a judgment or order on grounds of excusable default must be made 'within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry'" (see id citing CPLR § 5015 [a] [1]).
"A motion to vacate a default is addressed to the trial court's sound discretion" (see Merlino v Merlino, 171 A.D.3d 911 [2d Dept 2017] citing Simak v Simak, 121 A.D.3d 1090 [2d Dept 2014]; Vujanic v Petrovic, 103 A.D.3d 791 [2d Dept 2013]).
Defendant contends that he was unaware of the Court appearance and his prior, numerous appearances since the commencement of the divorce action evidence that he would have been present had he been made aware of the appearance. (NY St Cts Filing [NYSCEF] Doc No. 174). Defendant further contends that had he been aware of a court appearance scheduled for January 23, 2023, he most certainly would have appeared before the Court, where he would have argued against the relief sought by Plaintiff and in favor of the relief that he sought. (see id).
"Under CPLR § 5015 [a], a court is empowered to vacate a default judgment [or order] for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order" (see HSBC Bank United States, N.A. v. Alexis, 195 A.D.3d 600 [2d Dept 2021] quoting Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62 [2003] citing Nationstar Mtge., LLC v Russo, 167 A.D.3d 913 [2d Dept 2018]).
" CPLR § 5015 [a] does not provide an exhaustive list as to when a default judgment [or order] may be vacated, and a court may vacate its own judgment [or order] for sufficient reason and in the interests of substantial justice" (see id quoting 40 BP, LLC v Katatikarn, 147 A.D.3d 710 [2d Dept 2017] citing Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62 [2003]).
Plaintiff maintains that the Defendant has not presented a justifiable excuse for not appearing and should be held to the same standard as an attorney in making the decision to represent himself. Plaintiff further contends that the Defendant seemed quite acquainted with the filing system in filing his three motions against the Plaintiff and should have been aware of the January 25, 2023 court date.
On January 5, 2023, the Hon. Catherine M. DiDomenico issued a recusal Order in this matter. (NY St Cts Filing [NYSCEF] Doc No. 167). According to eCourts, on January 6, 2023, the matters were adjourned from Hon. Catherine M. DiDomenico's calendar for reassignment. No further Orders pertaining to the appearance date on January 25, 2023. No Court notice was posted on NYSCEF advising the parties of the new date. The Court has no doubt that as the Plaintiff claims, the parties were notified by email of the new court date and part, however, email can wind up in a spam folder, be accidentally deleted, or easily overlooked by a party that may be unfamiliar with the sender or not specifically looking for a certain email.
Under this specific set of circumstances, the Court finds in its discretion that the Defendant has a reasonable excuse for failing to appear before the Court on January 25, 2023. Defendant has provided in his affidavit in opposition to Motion Sequence #012 the existence of a potentially meritorious defense to the Plaintiff's allegations. The Defendant has brought this action seeking to vacate the default order in substantially less than the one-year limit.
Accordingly, the Defendant's request to vacate the Order dated March 7, 2023, which was granted on default, pursuant to CPLR § 5015 [a] [1] is GRANTED and Motion Sequence #012, Motion Sequence #015, and Motion Sequence #17 are restored to the calendar and scheduled for oral argument on September 14, 2023 at 9:30 AM, and it is further;
ORDERED, that Motion Sequence #013, Motion Sequence #014, and Motion Sequence #016 are restored to the calendar and withdrawn by the Defendant, and it is further;
ORDERED, that Defendant's request for leave to reargue/renew Motion Sequence #012 and Motion Sequence #017 pursuant to CPLR § 2221, is DENIED as motions have been restored to the active calendar and relief requested is moot.
IV. Recalculation of Child Support and Pro Rata Shares
The stipulation signed by the parties and dated April 13, 2018, states,
The parties agree that the Husband will pay to the Wife, as and for the support of the children of the marriage, by Bank check or postal money order, at her present place of residence, or at such other addresses as she may hereafter in writing designate to the Defendant $2,488.20 per month, commencing upon the entry of the judgment of divorce on the first day of each month, thereafter upon the termination of maintenance the payment shall be recalculated and increased in accordance with the statutory guide lines (NY St Cts Filing [NYSCEF] Doc No. 178).
The maintenance obligation terminated in July 2020. (NY St Cts Filing [NYSCEF] Doc No. 179). Defendant brings this motion seeking a recalculation of child support.
The April 13, 2018 stipulation provides that the Defendant's income in to be capped for child support calculations at "$143,000 per annum". (NY St Cts Filing [NYSCEF] Doc No. 178). Plaintiff contends that "[t]he Defendant's wages for 2017 on his tax return was $105,500.00 yet the support was calculated up to the statutory cap of $143,000.00 which took into consideration Defendant's unreported cash income." (NY St Cts Filing [NYSCEF] Doc No. 196). Defendant recognizes that his child support obligation was to be recalculated after the maintenance obligation terminated, with my income capped at $143,000.00 per annum. (NY St Cts Filing [NYSCEF] Doc No. 174).
"Income shall mean income as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act[.]" (see Domestic Relations Law § 236 [B] [5-a] [b] [4]).
"In determining parental income under the CSSA, the court must begin with the parent's 'gross (total) income as should have been or should be reported in the most recent federal income tax return'" (see Sinnott v Sinnott, 194 A.D.3d 868 [2d Dept 2021] citing Domestic Relations Law § 240 [1-b] [b] [5] [i]; Holterman v Holterman, 3 N.Y.3d 1 [2004]; Matter of Peddycoart v MacKay, 145 A.D.3d 1081 [2d Dept 2016]) "and then to the extent not already included in gross income, the amount of income or compensation voluntarily deferred and income received from certain specified sources, including pensions and retirement benefits[.]" (see id; citing Domestic Relations Law § 240 [1-b] [b] [5] [iii] [F]; Holterman v Holterman, 3 N.Y.3d 1 [2004]; Ballard v Davis, 259 A.D.2d 881 [3d Dept 1999]).
Domestic Relations Law § 240 [1-b] [b] [5] [vii] provides for the following deductions for income:
(vii) the following shall be deducted from income prior to applying the provisions ofparagraph (c) of this subdivision:
(A) unreimbursed employee business expenses except to the extent said expensesreduce personal expenditures,
(B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement,
(C) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.
(D) child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action,
(E) public assistance,
(F) supplemental security income,
(G) New York city or Yonkers income or earnings taxes actually paid, and
(H) federal insurance contributions act (FICA) taxes actually paid.
"It is settled that '[in] a matrimonial action involving issues of equitable distribution of marital property, public policy clearly mandates full financial disclosure'" (see Richter v Richter, 131 A.D.2d 453 [2d Dept 2022], quoting Charpentier v Charpentier, 495 N.Y.S.2d 89 [2d Dept 1985], citing Domestic Relations Law § 236 [B] [4]; Rubenstein v Rubenstein, 117 A.D.2d 593 [2d Dept 1986]; Hirschfeld v Hirschfeld, 114 A.D.2d 1006 [2d Dept 1985], affd 69 N.Y.2d 842 [1987]; Van Ess v Van Ess, 100 A.D.2d 848 [2d Dept 1984]; 22 NYCRR § 202.16.
"In determining a party's maintenance and child support obligations, '[a] court need not rely upon a party's own account of his [or her] finances, but may impute income based upon the party's past income or demonstrated future potential earnings[.]'" (see Tuchman v Tuchman, 201 A.D.3d 986 [2d Dept 2022] quoting Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]; citing Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]; Steinberg v Steinberg, 59 A.D.3d 702 [2d Dept 2009]).
"The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives[.]" (see id quoting Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]; citing Matter of Rohme v Burns, 92 A.D.3d 946 [2d Dept 2012]; Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]).
"Where a party's account is not believable, the court may impute a true or potential income higher than alleged[.]" (see id quoting Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]; citing Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]). "The court has considerable discretion in determining whether income should be imputed to a party and the court's credibility determinations are accorded deference on appeal[.]" (see id quoting Matter of Monti v DiBedendetto, 151 A.D.3d 864 [2d Dept 2017]; citing Matter of Kiernan v Martin, 108 A.D.3d 767 [2d Dept 2013]).
Plaintiff reports on line 9 of her 2022 1040 U.S. Individualized Income Tax Return a total income of $50,248.00. (NY St Cts Filing [NYSCEF] Doc No. 216). Defendant alleges the Plaintiff earns $100,000.00 per year (NY St Cts Filing [NYSCEF] Doc No. 174); however, the Defendant does not provide any evidence that would support the imputation of any additional income to the Plaintiff.
Defendant contends in his affirmation that he earned $109,000.00 as reflected in his 2022 W2 wage statement (see id). Defendant reports on line 1a of his 2022 1040 U.S. Individualized Income Tax Return a total amount from W-2 of $109,200.00 and on line 8 other income from Schedule 1, line 10 in the amount of $79,637.00 which results in his total gross income as reported on line 9 as $188,837.00 (NY St Cts Filing [NYSCEF] Doc No. 188). Defendant's Schedule 1 provides that the additional income of $79,637.00 is categorized on line 5 as "Rental real estate, royalties, partnerships, S corporations, trusts, etc." (see id).
In July 2020, Defendant's maintenance requirement ended. Defendant's Motion Sequence #018 properly requests that child support and the pro rata shares be recalculated as provided for in the terms in the April 13, 2018 stipulation.
"A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law §240 [1-b] [c] [1] [2]." (see Cimons v Cimons, 53 A.D.3d 125 [2d Dept 2008]. The Child Support Standards Act "provides a precisely articulated, three-step method for determining child support" (see Boltz v Boltz, 178 A.D.3d 656 [2d Dept 2019]. This three-step process includes (1) computing a combined parental income, (2) multiplying that income, up to a certain income cap, by a specific percentage, and (3) determining the amount of income that should be considered for child support purposes if the combined parental income exceeds the income cap. (see Cassano v Cassano, 85 N.Y.2d at 649 [1995]).
"[B]y statute, a party's child support and maintenance obligations are retroactive to the date an application for such support was made (see Domestic Relations Law § 236 [B] [6] [a]; [7] [a])." (see Groesbeck v Groesbeck, 51 A.D.3d 722 [2d Dept 2008]).
The "Court properly determined that the defendant was entitled to an award of child support retroactive to... the date of her pendente lite motion (see Fredericks v Fredericks, 85 A.D.3d 1107 [2d Dept 2011] citing Groesbeck v Groesbeck, 51 A.D.3d 722 [2d Dept 2008]).
A. Child Support Standards Act Calculation
Plaintiff
Defendant
Total Gross Income
$50,248.00
$188,831.00
FICA: Social Security tax paid
($3,115.38)
($9,114.00)
Medicare tax paid
($728.60)
($2,738.14)
New York City income tax paid
($1,453.70)
($6,821.24)
Adjusted CSSA Income
$44,950.32
$170,163.62
Plaintiff
Defendant
Adjusted CSSA Income
$44,950.32
$170,163.62
Combined Parental Income
$215,113.94
Statutory Combined Income Cap
$163,000.00
Applicable Child Support Percentage
29%
Annual Parental Support Obligation
$47,270.00
Share of Combined Parental Income
20.9%
79.1%
Annual Pro Rata Shares
$9,877.56
$37,392.44
Noncustodial Parent's Basic Annual Child Support Obligation
$37,392.44
Noncustodial Parent's Basic Monthly Child Support Obligation
$3,116.04
The parties' annual income exceeds the statutory income cap, however, at this time, no request has been made to exceed the statutory income cap and no evidence has been presented to warrant exceeding the cap.
Accordingly, the Defendant's request to recalculate child support is GRANTED. Defendant is ORDERED to pay Plaintiff child support retroactive to the date of this motion, April 4, 2023, in the monthly sum of $3,116.04 [Three Thousand One Hundred and Sixteen Dollars and Four Cents, and it is further;
ORDERED, that Defendant's request to recalculate the parties' pro rata shares is GRANTED and Plaintiff's pro rata share is 21% and Defendant's pro rata share is 79%.
V. Credit for Overpayment of Child Support
Defendant seeks a credit for any overpayments of child support resulting from the recalculation of child support retroactive to the date of this motion on April 4, 2023. Plaintiff alleges that the Defendant unilaterally altered the amount of child support being paid on or about July 16, 2020. (NY St Cts Filing [NYSCEF] Doc No. 215). Defendant provides a list from an unidentified source of alleged child support payments made to the Plaintiff by the Defendant. (NY St Cts Filing [NYSCEF] Doc No. 189). Defendant has not provided any further credible evidence of actual payments made to the plaintiff for child support and the Court cannot calculate any possible overpayment in child support that may have been made due to the recalculation of child support retroactive to the date of this motion on April 4, 2023.
Accordingly, Defendant's request for a credit for any overpayments of child support resulting from the recalculation of child support retroactive to the date of this motion on April 4, 2023 is DENIED without prejudice to renew.
VI. Out-of-network Health, Medical, Therapy, Optometry and Orthodontic Providers
"Pursuant to DRL § 240 [1-b] [c] [5] [v], each parent's share of unreimbursed health care expenses is to be prorated in the same proportion as each parent's income is to the combined parental income" (see Castello v Castello, 144 A.D.3d 723 [2d Dept 2016] citing Goldberg v Goldberg, 98 A.D.3d 944 [2d Dept 2012]). "[U]ncovered, unreimbursed medical and related expenses, 'responsibility for future reasonable unreimbursed health care expenses shall be prorated in the same proportion or percentage as each parent's income bears to the combined parental income" (see Sinnott v. Sinnott, 194 A.D.3d 868 [2d Dept 2021] quoting Cimons v. Cimons, 53 A.D.3d 125 [2d Dept 2008]).
The parties' stipulation dated April 13, 2018 provides, "also solely responsible for medical co-pays, unreimbursed medical 2/3 to Husband [Defendant] and 1/3 to Wife [Plaintiff]." (NY St Cts Filing [NYSCEF] Doc No. 178). There is no carveout in the parties' stipulation that mandates use of strictly in-network providers. DRL § 240 [1-b] [c] [5] [v] is very clear that unreimbursed health care costs are to be paid by the parties in their pro rata shares.
Further the stipulation dated April 13, 2018 provides, "[t]he parties shall have joint legal custody with physical custody and decision making to the Wife [Plaintiff]." (NY St Cts Filing [NYSCEF] Doc No. 178). Pursuant to the parties' stipulation dealing with custody and parenting-time, the Plaintiff had final say in the event the parties were unable to reach an agreement on any matter concerning, inter alia, the health of the children.
Accordingly, Defendant's request that Plaintiff to be directed to pay 100% of all out-of-network health, medical, therapy, optometry and orthodontic providers she selects to provide services to the children is DENIED with prejudice, and it is further;
ORDERED, that Plaintiff is to pay her 21% pro rata share retroactive to the date of this motion, April 4, 2023 for all in-network and out-of-network health, medical, therapy, optometry and orthodontic providers unreimbursed expenses for the children, and it is further;
ORDERED, that Defendant is to pay his 79% pro rata share retroactive to the date of this motion, April 4, 2023, for all in-network and out-of-network health, medical, therapy, optometry and orthodontic providers unreimbursed expenses for the children, and it is further;
ORDERED, that the cost for any out-of-network health, medical, therapy, optometry and orthodontic providers accrued prior to the recalculation of the parties' pro rata shares effective the date of this motion, April 4, 2023, shall be paid in accordance with the terms in the stipulation dated April 13, 2018 with Plaintiff responsible for one-third of the cost and Defendant responsible for two-thirds of the cost.
VII. College Expenses
The parties' stipulation dated April 13, 2018 provides with regard to the children's college education, parties are "responsible for college education at a state college or equivalent of cost 2/3 to Husband [Defendant] and 1/3 to Wife [Plaintiff] (NY St Cts Filing [NYSCEF] Doc No. 178). The agreement is silent as to any reduction in support attributable to the Defendant because of incurring the cost of the children's college expenses. Further there is no notification requirement in the stipulation that calls upon the Defendant to be specifically notified that the child is attending college. The sole obligation rests on the parties to pay their appropriate shares as provided for in the stipulation up to the cap of the cost of a SUNY college.
"A stipulation of settlement entered into by parties to a divorce proceeding, which is incorporated into, but not merged with, a divorce decree, constitutes a contract between them subject to the principles of contract interpretation" (see Mons Pinto v Pinto, 151 A.D.3d 715 [2d Dept 2017] citing Rainbow v. Swisher, 72 N.Y.2d 106 [1988]; Kleila v. Kleila, 50 N.Y.2d 277 [1980]; Matter of Trester v. Trester, 92 A.D.3d 949 [2d Dept 2012]; De Luca v. De Luca, 300 A.D.2d 342 [2d Dept 2002]; Girardin v. Girardin, 281 A.D.2d 457 [2d Dept 2001]). Here, the parties expressly acknowledged that their children would likely attend college, and they stated their mutual intention to contribute to their college expenses up to their pro rata shares of the so-called "SUNY cap."
Both the Plaintiff agreed to contribute one-third and the Defendant agreed to contribute two-thirds of the cost of SUNY tuition fees and miscellaneous expenses that would ensue if the children were to attend a State University School. This is not to restrict the child to the attendance of a State University school but is meant only to put a cap on the respective parties' obligation to contribute to the cost of that child's college education.
Defendant's "obligation for college expenses cannot be credited toward his child support payments because the parties entered into a stipulation in open court, incorporated but not merged into the judgment of divorce, which expressly required the plaintiff to assume a share [two-thirds] of their children's college expenses" (see Guryn v. Guryn, 308 A.D.2d 564 [2d Dept 2003] citing Regan v. Regan, 254 A.D.2d 402 [2d Dept 1998]; Grobman v. Grobman, 251 A.D.2d 544 [2d Dept 1998]; Kurzon v. Kurzon, 246 A.D.2d 693 [3rd Dept 1998]).
"[A] noncustodial parent paying child support while contributing to the expenses of a child's college education is entitled to a credit for the amounts contributed to college expenses during periods when the child lives away from home" (see Abizadeh v Abizadeh, 159 A.D.3d 858 [2d Dept 2018] quoting Matter of Levy v. Levy, 52 A.D.3d 717 [2d Dept 2008]). "[C]redit for college expenses includes solely those expenses that are associated with the cost of the child's 'room and board'" (see Matter of Levy v. Levy, 52 A.D.3d 717 [2d Dept 2008] quoting Guiry v. Guiry, 159 A.D.2d 556 [2d Dept 1990] citing Lincer v. Lincer, 30 A.D.3d 381 [2d Dept 2006]; Navin v. Navin, 22 A.D.3d 474 [2d Dept 2005]); Wortman v. Wortman, 11 A.D.3d 604 [2d Dept 2003]; Rohrs v. Rohrs, 297 A.D.2d 317 [2d Dept 2002]), "not for college tuition costs" (see id citing Azizo v. Azizo, 51 A.D.3d 438 [1st Dept 2008]; Lee v. Lee, 18 A.D.3d 508 [2d Dept 2005]).
In further refining the calculation of child support credits for college expenses, it is not the payor's overall child support obligation "that might properly be reduced on account of his payment of 'college expenses' on behalf of one or more of those children; rather, [it is] the 'college expenses' paid on behalf of one particular child, or on behalf of some particular children, [which] could properly serve as a credit only with respect to so much of the [payor]'s overall child support obligation as relates to such particular child or children" (see id quoting Lee v. Lee, 18 A.D.3d 508 [2d Dept 2005]; citing Saslow v. Saslow, 305 A.D.2d 487 [2d Dept 2003]).
Applying these principles here, Defendant's request that Plaintiff to be directed to pay 100% of college expenses or in the alternative if Defendant is directed to pay a pro rata share of SUNY college expenses that he be given a dollar-for-dollar credit against his child support obligation is DENIED with prejudice, and it is further;
ORDERED, that Plaintiff is to pay one-third of all the children's college expenses up to a SUNY cap and the Defendant is to pay two-thirds of all the children's college expenses up to a SUNY cap, and it is further;
ORDERED, that the Defendant is credited two-thirds of the room and board portion of college expenses as applied to that portion of the child support obligation attributable to the particular child in college.
Decretal Paragraphs
It is hereby ORDERED, that Defendant's request to vacate the Order dated March 7, 2023, which was granted on default, pursuant to CPLR § 5015 [a] [1] is GRANTED and Motion Sequence #012, Motion Sequence #015, and Motion Sequence #17 are restored to the calendar and scheduled for oral argument on September 14, 2023 at 9:30 AM, and it is further;
ORDERED, that Motion Sequence #013, Motion Sequence #014, and Motion Sequence #016 are restored to the calendar and withdrawn by the Defendant, and it is further;
ORDERED, that Defendant's request for leave to reargue/renew Motion Sequence #012 and Motion Sequence #017 pursuant to CPLR § 2221, is DENIED as motions have been restored to the active calendar and relief requested is moot, and it is further;
ORDERED, Defendant's request to recalculate child support is GRANTED and Defendant is to pay Plaintiff child support retroactive to the date of this motion, April 4, 2023, in the monthly sum of $3,116.04 [Three Thousand One Hundred and Sixteen Dollars and Four Cents, and it is further;
ORDERED, that Defendant's request to recalculate the parties' pro rata shares is GRANTED and Plaintiff's pro rata share is 21% and Defendant's pro rata share is 79%, and it is further;
ORDERED, that Defendant's request for a credit for any overpayments of child support resulting from the recalculation of child support retroactive to the date of this motion on April 4, 2023 is DENIED without prejudice to renew, and it is further;
ORDERED, Defendant's request that Plaintiff to be directed to pay 100% of all out-of-network health, medical, therapy, optometry and orthodontic providers she selects to provide services to the children is DENIED with prejudice, and it is further;
ORDERED, that Plaintiff is to pay her 21% pro rata share retroactive to the date of this motion, April 4, 2023 for all in-network and out-of-network health, medical, therapy, optometry and orthodontic providers unreimbursed expenses for the children, and it is further;
ORDERED, that Defendant is to pay his 79% pro rata share retroactive to the date of this motion, April 4, 2023, for all in-network and out-of-network health, medical, therapy, optometry and orthodontic providers unreimbursed expenses for the children, and it is further;
ORDERED, that the cost for any out-of-network health, medical, therapy, optometry and orthodontic providers accrued prior to the recalculation of the parties' pro rata shares effective the date of this motion, April 4, 2023, shall be paid in accordance with the terms in the stipulation dated April 13, 2018 with Plaintiff responsible for one-third of the cost and Defendant responsible for two-thirds of the cost, and it is further;
ORDERED, that Defendant's request that Plaintiff to be directed to pay 100% of college expenses or in the alternative if Defendant is directed to pay a pro rata share of SUNY college expenses that he be given a dollar-for-dollar credit against his child support obligation is DENIED with prejudice, and it is further;
ORDERED, that Plaintiff is to pay one-third of all the children's college expenses up to a SUNY cap and the Defendant is to pay two-thirds of all the children's college expenses up to a SUNY cap, and it is further;
ORDERED, that the Defendant is credited two-thirds of the room and board portion of college expenses as applied to that portion of the child support obligation attributable to the particular child in college, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.