Opinion
07-2594.
Decided April 15, 2008.
Blatchly Simonson, PC, Attorneys For Plaintiff, Jon A. Simonson, Esq., of counsel, New Paltz, New York.
Law Offices of Jeffrey C. Martin, Attorneys For Defendant, Jeffrey C. Martin, Esq., of counsel, Rhinebeck, New York.
This is a motion by defendant for pendente lite child support and counsel fees and a cross-motion by plaintiff for modification of the terms of the parties' separation agreement regarding child support and for leave to file a second amended complaint.
The parties to this matrimonial action physically separated in 2006. In October of that year, with the assistance of counsel for both sides, the parties executed a comprehensive Separation Agreement that not only provided for the settlement of issues surrounding custody of the parties' daughter but also resolved economic issues of equitable distribution, maintenance, child support and responsibility for ancillary expenses of the child. The agreement is so comprehensive that it even provides for a specific dispute resolution system in the event the parties are unable to come to terms on certain issues in the future.
On the question of child support, the agreement provides that defendant is to pay to plaintiff one thousand one hundred fifty dollars ($1,150.00) per month, subject to review at the end of 2007. At that time, support would be subject to a potential adjustment, but with a "floor" of eight hundred dollars ($800.00) per month and a "ceiling" of one thousand three hundred dollars ($1,300.00) per month. In the event the parties were unable to agree on the amount of child support to be paid from January of 2008 forward, the agreement mandates mediation and, in the event that mediation is unsuccessful, the parties must submit their dispute to "the Beit Din."
A Hebrew phrase meaning "House of Justice," it is variously spelled "Beth Din," "Beit Din" or "Beis Din." The Beth Din is a traditional rabbinical court in Judaism to which access is frequently made to resolve disputes within the Jewish community. New York Courts have approved stipulated resort to arbitration by a Beth Din as a means of dispute resolution adopted by parties to matrimonial actions ( see e.g. Friedman v Friedman , 34 AD3d 418 [2d Dept 2006]).
On June 26, 2007 plaintiff commenced this action by the filing of a Summons and Complaint. The complaint alleged cruel and inhuman treatment as the grounds for the divorce, and sought incorporation without merger of the parties' Separation Agreement. Following negotiations with defendant through counsel, plaintiff amended the complaint to allege constructive abandonment. In consideration of this amendment, defendant submitted an affidavit of "no contest" dated July 6, 2007 by which she appeared in the action and waived her right to answer, consenting to an uncontested judgment of divorce.
Plaintiff failed to follow through with the submission of uncontested papers. Instead, in December of 2007 he stopped paying child support and ceased contributing to any of the child's additional expenses. These events occurred almost contemporaneously with defendant's filing of a petition in the Family Court of Ulster County for a change of custody.
By the present motion defendant seeks a pendente lite child support order that mirrors the obligation undertaken by plaintiff in the parties' Separation Agreement. This relief is precisely what defendant would have received had plaintiff followed through with the uncontested divorce. Inasmuch as plaintiff sought incorporation without merger of the Separation Agreement in his original and amended complaints, granting plaintiff the divorce he sought would have provided defendant with a judgment that directed payment of the child support agreed to by the parties. Now, however, plaintiff opposes this relief and seeks review of his support obligation, modification of the Separation Agreement and permission to file yet another amended complaint, this one deleting incorporation of the child support provisions of the parties' agreement. The Court finds that defendant is entitled to some of the relief she seeks, while plaintiff's applications must be denied, as set forth below.
First and foremost, it is settled law that a pendente lite award should be designed, where possible, to preserve the financial status quo between the parties during the pendency of the litigation between them ( Zizza v Zizza, 306 AD2d 126 [1st Dept 2003]). Where the parties had a prior voluntary financial arrangement, the Court should look to that arrangement for guidance when setting an interim support level ( Id.). Here, the parties crafted a detailed agreement that considered many factors in arriving at a specific support obligation with provisions for a method of future review as well as resolution of potential disputes. It is therefore proper at this time to issue an order pendente lite directing plaintiff to comply with the support provisions of this agreement, particularly when (until most recently) it was plaintiff himself who sought incorporation of these same provisions into the divorce judgment.
Moreover, while plaintiff in his opposing affidavit recites a litany of recent financial reversals, he fails to submit a net worth statement. 22 NYCRR § 202.16(a) mandates submission of a net worth statement in connection with any application regarding child support, and 22 NYCRR § 202.16(f) mandates submission of a net worth statement ten days prior to a preliminary conference. These provisions notwithstanding, as of the date of this Decision and Order plaintiff has yet to provide the Court with his sworn and certified statement of net worth. This failure on plaintiff's part deprives him of any legitimate basis for opposing defendant's pendente lite application.
Defendant's application for an award of counsel fees is denied, with leave to renew on proper papers. No affirmation of services was provided by counsel, nor was a copy of the retainer agreement appended to the application. As a result, the application is defective ( see 22 NYCRR § 202.16[k]). Turning to plaintiff's cross-motion, the application to modify the child support obligation contained in the Separation Agreement is denied. As noted above, plaintiff's failure to have provided a net worth statement is fatal to any application regarding support. More importantly, however, this Court is without jurisdiction to modify the parties' agreement. "[A]bsent a successful challenge to the separation agreement via a plenary action . . . plaintiff [is] bound by its plain and unambiguous terms" ( Grieco v Grieco, 307 AD2d 488, 488 [3d Dept 2003], citing Carter v Carter, 265 AD2d 520 [2d Dept 1999]). Plaintiff has not commenced a plenary action seeking to modify the parties' contract; in fact, plaintiff's motion papers are devoid of any language suggesting the existence of either a basis in contract law to rescind or modify the agreement or a basis in that law for a defense against its enforcement. Additionally, a separation agreement cannot be modified on motion ( Frieland v Frieland, 200 AD2d 484 [1st Dept 1994]). Such relief demands either a full trial of the relevant equitable issues or, at the very least, an adequately developed record for evaluation of the claims alleged ( Id. at 484). For this reason as well, plaintiff's cross-motion is denied.
Plaintiff's application for leave to file and serve a Second Amended Complaint is also denied. The proposed pleading includes a provision excluding incorporation into the final judgment of that portion of the parties' agreement that deals with child support. This relief directly contradicts paragraph 18 of the Separation Agreement, which specifically envisions its incorporation without merger into a final judgment of divorce. As a result, the relief plaintiff seeks in his proposed Second Amended Complaint is, de facto, modification of the parties' agreement. This contractual remedy is devoid of support in the body of the proposed pleading, which contains no cause of action to support rescission, modification or reformation of the parties' agreement, nor does it contain any factual allegations to support any relief under principles of contract law.
In short, then, the parties negotiated, each with assistance of counsel, a comprehensive agreement settling their differences and providing a blueprint for the terms of an ultimate judgment of divorce. That agreement expressly acknowledges (at ¶ 7) "the difficulties the Husband faces in maintaining a stable income." The parties also provided a detailed set of procedures to be employed for the review and possible modification of plaintiff's child support obligations. It is therefore appropriate at this time, during the pendency of this action, to enforce by Court Order the provisions of the parties' contract relating to child support. It is also necessary to deny plaintiff's applications, which seek to avoid compliance with both the obligations voluntarily assumed and the alternative dispute resolution procedures voluntarily accepted by both parties.
Accordingly, it is
ORDERED that defendant's application for pendente lite child support of one thousand one hundred fifty dollars ($1,150.00) per month is granted, retroactive to February 15, 2008; and it is further
ORDERED that defendant's application for pendente lite counsel fees is denied, with leave to renew on proper papers; and it is further
ORDERED that plaintiff's cross-motion for modification of his child support obligation is denied; and it is further
ORDERED that plaintiff's cross-motion for leave to file and serve a Second Amended Complaint is denied.
This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorney for the defendant. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.