Opinion
Index No. 800317-20
06-08-2021
JG, Plaintiff, v. NG, Defendant.
Plaintiff's Attorney: Katherine Elizabeth Lindo, Esq., 516-333-7777 Defendant's Attorney: Nelson De La Cruz, Esq., 877-200-9077
Plaintiff's Attorney: Katherine Elizabeth Lindo, Esq., 516-333-7777
Defendant's Attorney: Nelson De La Cruz, Esq., 877-200-9077
Erica L. Prager, J.
The following papers were read on this motion:
Order to Show Cause, Affidavit, Affirmation and Exhibits [ Seq. 001 ] X
Notice of Cross-Motion, Affidavit and Affirmation in Opposition to Motion and in Support of Cross-Motion, and Exhibits [ Seq. 002 ] X
Affidavit and Affirmation in Opposition to Cross-Motion and in Further Support of Motion, and Exhibits [ Seq. 001 ] X
PRELIMINARY STATEMENT
The Plaintiff moves by Order to Show Cause ( Mot. Seq. 001 ) for an Order:
a) Requiring Defendant, NG, to comply with the parenting time provisions of Article XVII, paragraph 17.3 and 17.4, of the parties’ Stipulation of Settlement dated September 1, 2020;
b) Granting Plaintiff, JG, the following parenting time for October, 2020 with the parties’ two children, VG, date of birth xxxxxxx (age 5), and MG, date of birth xxxxxxx (age 7): October 6, 2020 at 4:00 p.m. to 7:00 p.m., October 12, 2020 from 4:00 p.m. to 7:00 p.m., October 13, 2020 from 4:00 p.m. to 7:00 p.m., October 16 at 4:00 p.m. through October 18, 2020 at 7:00 p.m., October 20, 2020 from 4:00 p.m. to 7:00 p.m., October 26, 2020 from 4:00 p.m. to 7:00 p.m., October 27, 2020 from 4:00 p.m. to 7:00 p.m. and October 31, 2020 from 4:00 p.m. to 10:00 p.m.;
c) Requiring Defendant, NG, to permit the parties’ children to have daily telephone calls with Plaintiff pursuant to Article XVII, paragraph 17.9 of the parties’ Stipulation of Settlement dated September 1, 2020;
d) Requiring Defendant, NG, to comply with Article XIII, paragraph 13.12 (i) of the parties’ Stipulation of Settlement dated September 1, 2020 and pay the monthly mortgage payment and home equity loan payment, and any all arrears, late fees, penalties, costs and interest that accrues to bring the mortgage and home equity loan current, and any arrears and fees that accrue until a decision on this Order to Show Cause;
e) Requiring Defendant, NG, to reimburse Plaintiff, JG, the sum of $2,188.38 for the September 2020 mortgage payment and $526.09 for the September 2020 home equity loan payment that he paid on Defendant's behalf, which includes the late fees;
f) Directing that the former marital residence, located at xxxxxxxxxx, be immediately listed for sale pursuant to Article XIII, paragraph 13.12 of the parties’ Stipulation of Settlement dated September 1, 2020;
g) Requiring Defendant, NG, to pay Plaintiff's counsel, Mejias, Milgrim, Alvarado & Lindo, the sum of $7,500.00 as and for Plaintiff's legal fees for having to file this motion;
h) For such other and further relief as this Court may deem just and appropriate.
The Defendant cross-moves by Notice of Cross-Motion ( Mot. Seq. 002 ) for an Order declaring the September 1, 2020 Stipulation of Settlement purportedly entered by the parties void, awarding Defendant reasonable attorney's fees, and such additional, different or other relief as the Court may deem just and proper.
BACKGROUND
Plaintiff JG (the "Husband") and Defendant NG (the "Wife") (together, the "Parties") were married on xxxxxxxx, xxxx. The Husband is a critical care nurse. The Wife owns and operates a delicatessen. There are two unemancipated children of the marriage: MG, born on xxxxxxxx, xxxx, and VG, born on xxxxxxxxx, xxxx (together, the "Children").
In August of 2017, the Parties separated. The Wife and Children remained in the marital residence in xxxxxxxxxxxx, NY (the "Marital Residence"), and the Husband moved to the Commonwealth of Pennsylvania. In April of 2020, the Husband moved back to New York. He presently resides in xxxxxxxxxxx, NY. The Wife and Children presently reside in the Marital Residence.
The Husband commenced the instant action for divorce on June 3, 2020. On or around September 1, 2020, the Parties entered into a Stipulation of Settlement (the "Stipulation") purporting to resolve all of the issues incident to the divorce including custody, parenting time, equitable distribution and support ( NYSCEF Doc. 20 ).
The Wife executed the Stipulation on August 28, 2020. On September 1, 2020, the Wife filed a Family Offense Petition in the Nassau County Family Court, in which she alleged that the Husband had been harassing her and had become extremely angry about her not signing the divorce papers. The Family Offense Petition resulted in the issuance of a Temporary Order of Protection. The Petition was ultimately dismissed on January 25, 2021 ( NYSCEF Doc. 59 ).
In the interim, the Husband's attorney electronically filed the Stipulation, a proposed Judgment of Divorce, and proposed Findings of Fact and Conclusions of Law on October 6, 2020 ( NYSCEF Docs. 5, 6, & 9 ). On the same date, the Husband filed the instant Order to Show Cause seeking to enforce the Stipulation.
DISCUSSION
The Stipulation .
The instant motions call for a determination as to the validity of the Stipulation, and whether or not its provisions were breached by the Wife.
The provisions for custody and parenting time are set forth in Article XVII of the Stipulation. In paragraphs 17.1 and 17.2, the Parties agree that the Wife will have residential custody of the Children, and that both Parties will share joint legal custody. Paragraph 17.3 sets forth the arrangement for the Husband's parenting time. Pursuant to this paragraph, the days and hours of the Husband's parenting time are not fixed, but vary from month to month, so as to accommodate the Husband's fluctuating work schedule. Specifically, paragraph 17.3 provides:
Regular Parenting Schedule: The parties agree that the Father shall have the following parenting time with the children: As the Father is employed by xxxxxxxxxxxxxx and he has a fluctuating work schedule, the Father receives his work schedule for the next month (i.e. Father receives his June work schedule in May). Within 72 hours of the Father's receipt of his work schedule, the Father shall email the Mother his requested parenting time schedule for the next month's parenting time (i.e. Father will email the Mother in May regarding his June parenting time), including weekday after school and dinner visits, weekday overnights and weekend parenting time. When Father has the children for an overnight and the children have school the next morning, the Father shall be responsible for bringing the children to school the next morning. As for the Father's weekend parenting time (defined as Friday after school through Sunday morning), the Father shall have no more than two weekends of parenting time per month to allow Mother to also enjoy weekend parenting time with the children.
Article XVII, paragraph 17.9 provides:
The parties agree to afford the children, when in his or her possession, reasonable daily telephone and e-mail and/or internet contact with the other parent.
The Stipulation also provides, among other things, that the Wife will retain her delicatessen business as her separate property, and that the Husband will retain his retirement accounts as his separate property. The Parties will each keep sole ownership of their respective vehicles. Each of the Parties will be solely responsible for his or her own debts. Each Party waives spousal support. Child support will be payable by the Husband to the Wife in the sum of $1,792.00 per month. This represents a small upward deviation from the presumptive award of $1,679 per month, calculated on the basis of an adjusted gross income of $80,000 for the Husband and an imputed income of $50,000 for the Wife. The Wife will have sole and exclusive ownership of the Marital Residence, and the Husband will retain sole and exclusive ownership of the residence that he purchased in Pennsylvania.
Article XIII, paragraph 13.12 of the Stipulation provides that, upon execution of the Stipulation, the Wife will be solely responsible for the timely payment of the mortgage, home equity loan and all carrying costs associated with the Marital Residence. The Wife will be permitted to collect all rents from the tenant in the rental apartment of the Marital Residence, and to apply same to the mortgage and home equity loan payments. The Wife will have one year from the execution of the Stipulation to refinance the mortgage and home equity loans so as to remove the Husband's name. If the Wife fails to make a timely payment of the mortgage or home equity loan while the Husband's name is still on the loan, the marital residence will be sold in accordance with the terms of Subsection (l) of paragraph 13.12.
The Arguments .
In his Affidavit in Support of his motion ( NYSCEF Doc. 17 ), the Husband asserts that the Wife has violated the terms of the Stipulation in two respects: (1) by refusing to allow the Husband to have his weekday parenting time and telephone access with the Children; and (2) by refusing to pay the mortgage and home equity loans on the Marital Residence.
With respect to parenting time, the Husband claims that the Wife refused to allow the Husband to have any weekday parenting time in September and October of 2020. In September, his proposed schedule included two weekends and four weekday dinners. He was permitted the weekends and Yom Kippur, but denied the four weekday visits, including a visit on which he planned to celebrate MG's birthday. In October, the Husband's proposed parenting time schedule included one weekend and six weekday dinners. According to the Husband, he was refused the weekday visits. The Husband notes that on December 8, 2020, the prior Judge who had presided over this case ordered the Wife to permit a minimum of one weekday dinner visit per week, in addition to the regular weekend visitation (see NYSCEF Doc. 57 ).
The Husband alleges further that the Wife refused to allow his daily telephone calls with the Children throughout September and October.
In the Husband's view, the Wife's refusals are motivated by spite and animosity toward him. He notes that the Wife denied him weekday access to the Children even when she was at work and her mother was caring for the Children. He argues that MG is in need of homework help, which the Husband could provide. He seeks enforcement of the Stipulation as it pertains to parenting time and telephone access.
With respect to the mortgage and home equity loans on the Marital Residence, the Husband alleges that the Wife has refused to pay the mortgage and the home equity loans as required by the Stipulation. Accordingly, because his name still remains on the loans, the Husband made the September payments in order to maintain his credit. The Husband seeks an Order directing the Wife to reimburse him for the September payments and to pay the October installments, including any arrears, late fees, penalties, costs and interest. Further, the Husband seeks an Order directing that the Marital Residence be sold in accordance with the Article XIII, paragraph 13.12(l)(1)-(4) of the Stipulation.
In addition to the foregoing, the Husband seeks legal fees for the costs of bringing this motion. He asserts that the Wife was given notice and an opportunity to cure her default in accordance with the terms of Article XXI, paragraph 21.2 of the Stipulation. Insofar as the Wife has failed to remedy the default, he argues, he is entitled to reimbursement of his attorney's fees pursuant to paragraph 21.2.
The Wife's arguments in opposition to the motion and in support of her cross-motion are twofold. She contends that: (1) the Stipulation is void, insofar as she executed it under duress; and (2) even if the Stipulation were deemed enforceable, she did not violate its terms.
On the issue of duress, the Wife outlines what she describes as a course of harassment and relentless pressure to sign the Stipulation imposed upon her by the Husband. According to the Wife, the Husband moved back to New York to live with his pregnant girlfriend, and was eager to be divorced prior to the birth of his child. From April 2020 onward, she claims, the Husband began applying pressure upon her to procure a divorce. The Wife states that she did not share his urgency, and was inclined to maintain the status quo while she was dealing with the effect of COVID-19 restrictions on her business and family life.
The alleged harassment included repeated and multiple text messages and phone calls, an appearance by the girlfriend at the Wife's place of business, and an anonymous report to Child Protective Services alleging neglect on the part of the Wife, which was determined to be unfounded. The Wife claims that she feared the Husband, based upon his history of psychiatric problems and aggressive behavior, which she outlines more fully in her affidavit.
The Wife claims that due to the "incessant pressure," she finally relented, and engaged in communications with the Husband and his counsel regarding a settlement. She was not represented by counsel at the time. The document drafted by the Husband's counsel, she claims, was one-sided and unfavorable to her. She states that she communicated to the Husband's counsel the specific changes that she wanted to include in the agreement, but that these changes were never incorporated. Starting on August 24, 2020, the Wife claims, and continuing until she signed the Stipulation, the campaign of harassment escalated, resulting in her signing a document that was detrimental to her interests.
Among the unfavorable terms, the Wife highlights: (i) her waiver of maintenance, (ii) her waiver of any interest in the Husband's retirement accounts, the Pennsylvania property and other alleged assets, (iii) child support based on an attribution of income to each of the respective Parties which, in her view, was erroneous and unduly favorable to the Husband, and (iv) the provision requiring her to refinance within one year and/or to risk losing the Marital Residence if she misses one payment. She claims further that the Stipulation required her to "forego the benefits of commitments made to me by [JG] with respect to a debt incurred by me for the benefit of [JG] and the children, and promised assistance by [JG] to me towards the payment of student loans" ( NYSCEF Doc. 52 , ¶ 36 ). Finally, she complains of "a parenting plan so generous that I am supposedly required to agree to every date and time requested by [JG] as and for parenting time" ( Id. ). Based upon the foregoing, the Wife seeks a declaration that the Stipulation is invalid and unenforceable.
In the alternative, the Wife argues that she is not in violation of the terms of the Stipulation. With respect to parenting time, the Wife notes that nothing in the Stipulation requires the Wife to provide the Husband with an unlimited number of weekday visits, or to permit visitation at times that would disrupt the Children's routines and stability. She notes that weekday visitation tends to interfere with the Children's ability to do homework, eat dinner and go to sleep at their regularly scheduled times. The Wife asserts that the needs of the Children must be balanced against either of the Parties’ convenience and availability for parenting time. Moreover, the Wife maintains, the Stipulation does not obligate her to honor every request for a change of visitation after the 72 hour period set forth in Paragraph 17.3. The Wife asserts that she is amenable to one overnight weekday visit per week on a fixed day (i.e. Thursday), in addition to such other weekend visitation as the Court may otherwise award.
The Wife also expressed concern that the Husband's employment as a nurse in a COVID-19 unit during the time periods relevant to this motion placed the Children at an unacceptable risk of exposure to COVID-19.
With respect to telephone access, the Wife notes that the Stipulation only requires "reasonable" daily telephone contact. In her view, that does not mean that the Children must be brought to the phone at any time the Husband chooses to call. As with parenting time, her concern is the disruption in the Children's routine.
With respect to the payment of the mortgage and home equity loans, the Wife contends that she is entitled to offset certain obligations owed to her by the Husband. According to the Wife, the Husband owes her $10,492.31 for unemployment benefits that were required to be repaid — benefits that were used for household expenses and her student loans. Moreover, she claims that the Husband made a commitment to assist her with payment of her student loans. The Wife alleges that since the time of the Parties’ separation, she had been delivering the funds necessary to pay the mortgage and home equity loans to a joint checking account that the Parties had used for years to pay the bills. The conflict arose, she claims, when the Husband abruptly withdrew all funds and removed the Wife's name from the account. She claims that closing the joint account created the shortfall. From then on, she states, the Husband insisted that the Wife meet her financial obligations to him, without addressing the financial commitments he had previously made to the Wife.
The Wife asserts that she is paying, and will continue to pay, the mortgage and home equity loans. She does not believe, however, that she should be required to reimburse the Husband for the amounts that were due in September 2020, because the Husband's conduct in closing the joint checking account created the shortfall, and because he otherwise owes her over $10,000 and assistance with her student loans. The Wife seeks to be provided with proof of the amounts owed for the home equity loan (because she no longer has access to the joint account), and to reduce any amounts owed to the Husband by any sums determined by the Court to be owed to her.
Finally, the Wife asserts that there is no legal justification for placing the Marital Residence on the market after only one missed month of payments on the mortgage and home equity loans. Moreover, she contends, the Stipulation affords her 365 days from the date of execution to remove the Husband's name from the mortgage, and thus she is not presently obligated to do so. The Wife opposes the Husband's demand for attorney's fees on the ground that the instant motions were not necessary and that any alleged non-compliance on the part of the Wife was caused, in whole or in part, by the Husband's own conduct.
The Wife seeks a hearing on the issue of whether or not the Stipulation was entered into under duress or is otherwise unconscionable.
The Husband opposes the cross-motion to set aside the Stipulation. First, he argues that the cross-motion is untimely, insofar as it was not filed by the return date set forth in the motion, nor within the 10-day extension period granted by the prior Judge. Second, he argues that the Wife has failed to prove that the Stipulation is unfair or resulted from duress or overreaching.
The threshold issue raised by the two motions presently before the Court is the extent to which the Stipulation is valid and enforceable. Accordingly, the Court first considers the Wife's cross-motion to set aside the Stipulation.
The Wife's Cross-Motion (Seq. 002) .
It is undisputed that the Wife's Cross-Motion, filed on January 25, 2021, was untimely, having been filed after the expiration of the ten-day extension period granted by the prior Judge. In his Attorney Affirmation of Lateness, the Wife's counsel explains that he failed to timely file the opposition and cross-motion "[d]ue to my failure to properly calendar the briefing schedule and a combination of other factors including competing professional obligations, personal/family obligations and the holidays" ( NYSCEF Doc. 42 ).
The Court finds that the explanation proffered by counsel, which is tantamount to "law office failure," is sufficient to excuse the delay and to permit consideration of the cross-motion on the merits. See CPLR §§ 2004, 2005 ; Tewari v. Tsoutsouras , 75 NY2d 1 (1989).
Turning to the applicable law, it is well settled that "[m]arital settlement agreements are judicially favored and are not to be easily set aside.... A stipulation of settlement entered into by parties to a divorce proceeding that is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability." Heinemann v Heinemann , 189 AD3d 1553, 1553-1554 (2d Dept. 2020) (internal citations and quotation marks omitted). See also Christian v Christian , 42 NY2d 63 (1977) ; Stein v. Stein , 130 AD3d 604 (2d Dept. 2015).
The party seeking to rescind the agreement has the burden of showing that the agreement was the result of fraud, duress, overreaching or unconscionability. Rubin v Rubin , 33 AD3d 983 (2d Dept. 2006).
"A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his or her free will." Heinemann , 189 AD3d at 1554-1555. "Generally, the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing.... The threat must be such as to deprive the party of the exercise of free will..... Similarly, a contract may be set aside on the grounds of coercion whenever a party is so situated as to exercise a controlling influence over the will, conduct and interest of another.... Generalized contentions that a party felt pressured are insufficient." Shah v Mitra , 171 AD3d 971, 976 (2d Dept. 2019).
"To rescind a separation agreement on the ground of overreaching, a [party] must demonstrate both overreaching and unfairness.... No actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching in its execution.... Courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching.... However, generally, if the execution of the agreement is fair, no further inquiry will be made" Heinemann , 189 AD3d at 1554-1555 (internal citations and quotation marks omitted).
"An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense.... An agreement, however, is not unconscionable merely because, in retrospect, some of its provisions were improvident or one-sided." Heinemann , 189 AD3d at 1555 (internal citations and quotation marks omitted).
In the case at bar, the Court finds that the Wife's allegations, if accepted as true, nonetheless fail to demonstrate that the pressure exerted by the Husband rose to the level of duress. To the extent that the Court credits the Wife's unspecific and unsubstantiated account of frequent hostile contact initiated by the Husband, as well as her vague allegations of a history of aggressive conduct, the Court finds this insufficient to demonstrate that the Husband posed such a threat, or exerted such an influence over her, so as to deprive her of the exercise of her free will.
On the question of overreaching, the Court notes that there is no allegation or proof that the Wife was not fully informed as to the Husband's financial circumstances, that she did not understand any of the terms of the Stipulation, or that she was deprived of a meaningful opportunity to review the Stipulation prior to signing. The fact that she was not represented by counsel during the negotiation and execution of the Stipulation does not, by itself, establish overreaching or require automatic nullification of the agreement. Wilson v Neppell , 253 AD2d 493 (2d Dept. 1998). This is especially true where, as here, the Wife expressly acknowledged in the Stipulation that she was fully informed of her right to retain her own attorney and chose to proceed without one. Id.
Moreover, the Court cannot find, on the record presented, that the Stipulation was unconscionable. The Wife has not shown how the Stipulation, which appears to be relatively balanced on its face, is actually so one-sided as to shock the conscience. Although the Wife relinquishes certain interests, to which she may or may not otherwise have been entitled, she also retains sole and exclusive ownership of the Marital Residence, the rental income therefrom, and her own business. She is not left without a means of support. She has not even shown a disparity between the value of the assets allocated to the Husband and those allocated to the herself.
Insofar as the Wife fails to demonstrate, prima facie , any basis for setting aside the Stipulation, the Court finds that no hearing on the issue is warranted.
The Court does however, apply closer scrutiny to those provisions of the Stipulation, complained of by the Wife, which pertain to and directly affect the Children. It is well settled that "contracts entered into by the parents with regard to the fate of their children are not binding on the courts. Domestic Relations Law § 70 and § 240 impose the responsibility upon the courts to make custody and visitation orders based upon the best interests of the child." Glauber v Glauber , 192 AD2d 94, 97-98 (2d Dept. 1993).
Here, the visitation provisions of the Stipulation, which allow for a visitation schedule that varies from month to month based upon the Husband's work schedule, give rise to a level of uncertainty and instability in the family's home life, as well as an opportunity for conflict between the parents, that is not supportive of the best interests of the Children. Similarly, the provision for "reasonable" daily telephone access is too vague and unpredictable to promote family accord. The Court is of the opinion that the flexibility and convenience of the parents must, in this case, yield to the needs of the Children for peace and stability.
Accordingly, the Court directs that the Husband shall have regular parenting time on two fixed weekends per month, together with at least one weekday visit per week, on a fixed day (or days) of the week, as the Parties shall agree. If the Parties cannot agree, then the matter shall be scheduled for a hearing. Daily telephone access shall be provided to the parent who is not with the Children, at a fixed time or times as the Parties shall agree. If the Parties cannot agree, then the matter shall be scheduled for a hearing.
The Stipulation remains in full force and effect, except to the extent that it is inconsistent with the foregoing directives with respect to parenting time and telephone access. See Stipulation, Article VII, ¶ 7.1.
The Court also notes that the provisions for child support may fall short of the guidelines set forth in the Child Support Standards Act if, as argued by the Wife, the calculations upon which they are based erroneously state the Parties’ income. The Wife fails to support her argument, however, with financial documentation substantiating her claim. The Court declines to rule on the matter in the absence of a fully briefed and supported application for a modification of child support.
The Husband's Motion (Seq. 001) .
As discussed above, the Court finds that the provisions in the Stipulation providing for variable parenting time for the Husband and "reasonable" daily telephone access are, under the circumstances presented here, inconsistent with the best interests of the Children. Accordingly, the Court declines to enforce said provisions in the manner sought by the Husband.
The Court finds no such impediment to enforcing the Stipulation as it pertains to the mortgage and home equity loans. The Wife's obligation with respect thereto is clear and unequivocal. The Wife fails to substantiate her vague and conclusory claim of debt owed to her by the Husband, and fails to offer a legal or contractual basis for her belief that she is entitled to set off such debt against her mortgage obligation. The Wife is thus required to reimburse the Husband for any sums paid toward the mortgage loans on her behalf (except to the extent provided below), and to continue to pay the mortgage and home equity loan installments, in full, as they become due.
With respect to the joint checking account, the closing of which (by the Husband) allegedly triggered the conflict regarding the mortgage loan payments, the Stipulation provides:
"The parties acknowledge and represent that they have a joint checking account with xxxxxxxxxx, account number ending in xxxx. The parties acknowledge that the HUSBAND received his 50% share of the account and the remaining funds shall be the sole and exclusive property of the WIFE. The WIFE shall withdraw said funds within seven days of the execution of this Stipulation of Settlement and the parties shall close the account." Stipulation, Article XIII, ¶13.2.
To the extent that the Husband unilaterally withdrew funds from the joint account in excess of his 50% share, which were the property of the Wife pursuant to paragraph 13.2 of the Stipulation, the Wife may deduct this amount from the total mortgage obligation for the month of September 2020 for which she is otherwise required to reimburse the Husband.
To the extent that the Husband seeks to enforce the immediate sale of the Marital Residence, that relief is unjustifiably draconian under the circumstances, and appears to have been rendered unnecessary by the Wife's assertion, without contradiction, that she has been paying both mortgage loans since October 2020.
With respect to legal fees, Paragraph 21.2 of the Stipulation provides:
In the event that either party defaults with respect to any obligation under this agreement and said default is not remedied within ten (10) days after the sending of a written notice to the defaulting party specifying such default (such default notice to be sent via email), such defaulting party shall and hereby does indemnify the other party against, or shall reimburse him or her for, reasonable attorney's fees, disbursements and Court costs incurred by the non-defaulting party in bringing suit or other proceeding to enforce any of the terms, covenants or conditions of this agreement to be performed or complied with by the other, provided such suit or other proceeding results in a judgment, decree or order in favor of him or her. For the purpose of this Stipulation, it is understood and agreed that in the event either party shall institute an action or other proceeding against the other to enforce any of the terms, covenants and conditions of this Stipulation, and after the institution of such action or proceeding and before judgment is or can be entered, the defaulting party complies with such terms, covenant or condition, or a settlement is reached, then and in those events, the action or proceeding shall be deemed to resulted in a judgment, decree or order in favor of the non-defaulting party and counsel fees shall be awarded to the non-defaulting party. In the event that the party bringing the application with regard to an alleged default is withdrawn or does not prevail, then not then [sic] the other party shall be entitled to reasonable attorneys’ fees, disbursements and court costs from the party bringing said application.
Here, pursuant to the terms of Paragraph 21.2, the Husband can be said to have prevailed on his enforcement motion solely with respect to the provisions regarding the payment of the mortgage and home equity loans. He cannot be said to have prevailed with respect to the provisions for parenting time and telephone access. Thus, on the one hand, he is entitled to attorney's fees from the Wife, and on the other hand, the Wife is entitled to attorney's fees from him. Under these circumstances, the Court determines that each Party shall be responsible for his or her own attorney's fees.
Paragraph 22.3 of the Stipulation provides: "If either party by any action, proceeding, defense, counterclaim or otherwise, seeks to vacate or set aside this agreement or declare any of its terms and conditions as invalid, void or against public policy, by any reason including but not limited to fraud, duress, incompetency, overreaching, or unconscionability, said party shall reimburse the other party and be liable for any and all such party's reasonable attorney's fees and expenses, provided and to the extent that such action, proceeding, counterclaim or defense results in a decision, judgment, decree or order dismissing or rejecting said claims." The Husband did not invoke this provision in his application for attorney's fees, but if he had, it would have been similarly unavailing. Under this provision, as under Paragraph 21.2, the Court finds no basis for an award of attorney's fees, insofar as the Wife can be said to have prevailed on at least a portion of her motion, to the extent that it sought to invalidate the provisions for parenting time and telephone access.
The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein.
Based upon the foregoing, it is
ORDERED, that the portion of the Husband's motion (Seq. 001) that seeks an Order requiring the Wife to comply with the parenting time provisions of Article XVII, paragraph 17.3 and 17.4 of the Stipulation is DENIED , except that the Husband shall have parenting time with the Children pursuant to the fixed schedule agreed to by the Parties in accordance with the above decision; to the extent that the Parties cannot agree within thirty (30) days of the date hereof, the Parties shall so notify the Court, whereupon the Court shall schedule a hearing; and it is further
ORDERED, that the portion of the Husband's motion (Seq. 001) that seeks an Order granting the Husband specific parenting time in the month of October 2020 is DISMISSED as having been rendered academic; and it is further
ORDERED, that the portion of the Husband's motion (Seq. 001) that seeks an Order requiring the Wife to permit the Children to have daily telephone calls with the Husband pursuant to Article XVII, paragraph 17.9 of the Stipulation is DENIED , except that the Husband shall have daily telephone access pursuant to the fixed schedule agreed to by the Parties in accordance with the above decision; to the extent that the Parties cannot agree within thirty (30) days of the date hereof, the Parties shall so notify the Court, whereupon the Court shall schedule a hearing; and it is further
ORDERED, that the portion of the Husband's motion (Seq. 001) that seeks an Order requiring the Wife to comply with Article XIII, paragraph 13.12 (i) of the Stipulation and to pay the monthly mortgage payment and home equity loan payment, and any all arrears, late fees, penalties, costs and interest that accrues to bring the mortgage and home equity loan current, is GRANTED , to the extent that the Wife has not already complied; and it is further
ORDERED, that the portion of the Husband's motion (Seq. 001) that seeks an Order requiring the Wife to reimburse the Husband the sum of $2,188.38 for the September 2020 mortgage payment and $526.09 for the September 2020 home equity loan payment that he paid on the Wife's behalf, which includes late fees, is GRANTED , provided that the Husband shall first provide to the Wife all documentation substantiating the amounts claimed, including an accounting of the sums withdrawn from the joint checking account; the Wife shall make payment to the Husband within ten (10) days of receipt of same and verification of the amount due in accordance with this decision; and it is further
ORDERED, that the portion of the Husband's motion (Seq. 001) that seeks an Order directing that the Marital Residence be immediately listed for sale pursuant to Article XIII, paragraph 13.12 of the Stipulation is DENIED ; and it is further
ORDERED, that the portion of the Husband's motion (Seq. 001) that seeks an Order requiring the Wife to pay the Husband's counsel the sum of $7,500.00 as and for legal fees for having to file this motion is DENIED ; and it is further
ORDERED , that the Wife's cross-motion (Seq. 002) for an Order declaring the Stipulation void and awarding the Wife reasonable attorneys fees is DENIED , except to the extent that Paragraphs 17.3 and Paragraph 17.9 have been found to be, in whole or in part, inconsistent with the best interests of the Children.
Any requests for relief not specifically addressed herein are DENIED .
This is the Decision and Order of this Court.