Opinion
XXXXX/2018
05-10-2021
M.G., Plaintiff, v. J.G., Defendant.
For the Plaintiff: Michael Todd Mueller, Esq., Mueller Law Firm, PC For Defendant: Ryan Joshua Casson, Esq., Blank Rome, LLP
For the Plaintiff: Michael Todd Mueller, Esq., Mueller Law Firm, PC
For Defendant: Ryan Joshua Casson, Esq., Blank Rome, LLP
Joanne D. Quiñones, J.
Recitation, as required by CPLR 2219(a) of the papers considered in review of this motion:
PAPERS NUMBERED
Order to Show Cause, Affidavits and Exhibits Annexed NYSCEF Document 2
Notice of Cross-Motion, Affidavits and Exhibits Annexed NYSCEF Documents 3-22
Answering Affidavits and Exhibits Annexed NYSCEF Documents 23-27
Transcript of Oral Argument on 3/24/21 NYSCEF Document 28
UPON THE FOREGOING CITED PAPERS, AND AFTER ORAL ARGUMENT, THE COURT FINDS AS FOLLOWS:
Defendant moves by Order to Show Cause (OSC) (Motion Sequence 1) for an Order i) directing Plaintiff to procure and maintain a comprehensive health insurance plan for the child that is the same or substantially similar to the Empire Blue Cross Blue Shield (Empire BCBS) EPO plan that was in effect at the time the parties entered into the Settlement Agreement; and ii) awarding counsel fees in the amount of $12,500 in connection with bringing this enforcement application. By Notice of Cross-Motion (Motion Sequence 2), Plaintiff seeks an Order: a) imposing sanctions upon Defendant and ordering Defendant to pay Plaintiff's reasonable attorney's fees for the frivolous nature of Defendant's OSC in an amount to be determined by the court. Defendant, by Reply and in Opposition to Plaintiff's Cross-Motion, moves to modify his previous request of an award of $12,500 in counsel fees to $20,000 in counsel fees.
BACKGROUND
The parties were married on July 14, 2015. They have one child, born in May 2016. On December 19, 2018, the parties entered into a Stipulation of Settlement and Agreement. On August 5, 2019, the judgment of divorce was filed.
By Stipulation of Settlement and Agreement dated December 19, 2018, the parties agreed that Plaintiff would continue to pay for and maintain the child's medical and hospitalization insurance as offered through her employer (see Stipulation of Settlement and Agreement [Stip], p26, ¶ 7.8). At the time of the agreement, Plaintiff was employed at New York Presbyterian Hospital (see Plaintiff's Affidavit [Pl Aff] dated 1/30/21, p2, ¶ 13). The stipulation further provided that in the event Plaintiff no longer received health insurance through her employer, she would obtain replacement coverage that was "substantially similar" to the insurance in effect at the time of the agreement (see Stip at p26, ¶ 7.8). At the time of the agreement, Plaintiff's employer offered a health benefits plan with Empire Blue Cross Blue Shield (see id. at p27, ¶ 7.11). In 2020, Plaintiff was terminated from New York Presbyterian Hospital (see id. at p3, ¶ 15, 20). After her termination from New York Presbyterian Hospital, Plaintiff obtained health care for the parties’ child through MetroPlus (see id. at p4, ¶ 29).
PARTIES’ CONTENTIONS
Defendant posits that Plaintiff has willfully violated the parties’ settlement agreement in that she has failed to maintain health insurance for the child that is "substantially similar" to the health insurance in effect at the time of the agreement (see Defendant's Affidavit [Def Aff] dated 11/19/20, p2-3, ¶ 5). He submits that upon her termination from New York Presbyterian Hospital, Plaintiff waived COBRA coverage and instead purchased a "woefully insufficient" health insurance plan through MetroPlus (see id. at p3, ¶¶ 6-7). He submits that MetroPlus "offers a restrictive network of medical providers, and [that] most providers, including [the child's] long-term pediatrician, and major hospitals do not accept this plan" (id. at p4, ¶ 7). He further contends that "to the extent a provider does not accept the plan, the patient is required to pay significantly more out-of-pocket, and there are much higher deductibles," for which he is 80% responsible (id. ).
Defendant further seeks an award of counsel fees in connection with this enforcement application. He argues that Plaintiff has defaulted with respect to her obligation to provide the child with comprehensive health insurance coverage, which required him to bring this enforcement application (id. at p5, ¶11-12). He submits that pursuant to the terms of the agreement, a defaulting party shall indemnify the other against any and all reasonable expenses, including attorney's fees (id. at p5, ¶10).
It is Plaintiff's position that she has not violated the parties’ stipulation (see Pl Aff at p7, ¶ 60). She submits that since 2019, when her former employer, New York Presbyterian, switched their offered health benefits plan, the child's health insurance was with Aetna and not Blue Cross Blue Shield as Defendant contends (see id. at p3, ¶ 14). She further submits that her new employer doesn't offer any healthcare benefits, but with the assistance of the "Certified Application Counselors" at her new work location, she was able to obtain health insurance for the parties’ child with MetroPlus, which she contends was "the best available option" (see id. at p4, ¶¶ 26-29). She argues that Defendant has failed to substantiate his claims that the child's current health insurance is not "substantially similar" to the previous health insurance (see id. at p10, ¶¶ 82-83). She further argues that it is Defendant who has violated the stipulation, specifically the provision which requires the parties to jointly consult a qualified expert should a conflict arise over any significant matter involving the child (see id. at p11-12, ¶¶ 93-94). She seeks an award of counsel fees as well as an order imposing sanctions on Defendant for what she terms his "frivolous," "unnecessary and inappropriate motion" (see id. at p17, ¶ 122).
DEFENDANT'S OSC
Child's Health Insurance Coverage
It is well settled that a stipulation of settlement is an enforceable contract (see McSherry v McSherry , 163 AD3d 650, 651 [2nd Dept 2018] ; Stein v Stein , 130 AD3d 604, 605 [2nd Dept 2015] ; Alshawhati v Zandani , 82 AD3d 805, 807 [2nd Dept 2011] ). The terms of a settlement agreement operate as binding contractual obligations upon on the parties (see Khorshad v Khorshad , 121 AD3d 857, 858 [2nd Dept 2014] ; Ambrose v Ambrose , 93 AD3d 744, 745 [2nd Dept 2012] ; Matter of Moss v Moss , 91 AD3d 783, 783 [2nd Dept 2012] ). As such, the terms of a stipulation of settlement are "subject to the principles of contract construction and interpretation" (Matter of Meccico v Meccico , 76 NY2d 822, 823-24 [1990] ; see also Matter of Korosh v Korosh , 99 AD3d 909, 910 [2nd Dept 2012] ; Ayers v Ayers , 92 AD3d 623, 624 [2nd Dept 2012] ).
Here, Defendant seeks to enforce a provision contained within Article VII of the stipulation, the article entitled "Child Support." Under the subsection "The Child's Medical Insurance and Medical Expenses," the stipulation provides:
The Wife represents and warrants that she currently carries medical and hospitalization insurance for the benefit of the Child through her employer and agrees that she shall continue to pay for and maintain said coverage for the Child until the sooner to occur of (a) the Child's Emancipation (as defined in this Agreement) or (b) the Wife relocation outside of the State of New York. If the Wife no longer receives health insurance coverage through her employer, the Wife will procure and maintain replacement coverage for the Child which shall be substantially similar to the current insurance coverage, and shall be solely responsible for the costs of same
(see Stip at p26, ¶ 7.8).
The clear and unambiguous terms of the agreement require Plaintiff to maintain health insurance for the parties’ minor child through the coverage offered by her employer or, if such is no longer available, through "substantially similar" coverage. The term "substantially similar" is not defined anywhere in the agreement. A definition for the phrase "substantially similar" is also not found in Black's Law Dictionary. However, Black's Law Dictionary uses the term "substantially similar" in its definition of the word "like." "Like" is defined as "equal in quantity, quality, or degree; corresponding exactly" or "similar or substantially similar; of much the same nature" (LIKE, Black's Law Dictionary [11th ed. 2019]).
In interpreting the terms of a stipulation of settlement, "a court should construe it in such a way as to ‘give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized’ " ( Matter of Moss , 91 AD3d at 784, quoting Hyland v Hyland , 63 AD3d 1106, 1107 [2nd Dept 2009] ; see also Vider v Vider , 46 AD3d 673, 674 [2nd Dept 2007] ). "As with any contract, where the terms of a stipulation of settlement are unambiguous, the Supreme Court must give effect to the parties’ intent based upon the plain meaning of the words used by the parties" ( Stein , 130 AD3d at 605 ; see Teitelbaum Holdings v Gold , 48 NY2d 51, 56 [1979] ; Matter of Legion of Christ, Inc. v Town of Mount Pleasant , 151 AD3d 858, 859-60 [2nd Dept 2017] ).
It is clear from the plain meaning of the words used by the parties in their agreement that the intent was that any "replacement coverage" for the child be "equal in quality" or "of much the same nature" as the health insurance coverage in place at the time of the agreement. Plaintiff's contention that MetroPlus provides insurance coverage comparable to the previously held Empire BCBS is spurious at best. Annexed to Plaintiff's submission are lists of hospitals in Brooklyn and Manhattan where MetroPlus is accepted (see Plaintiff's Exhibits [Pl Exh] M and N). Only ten hospitals in Manhattan accept MetroPlus and two of them, NYU Hospital for Joint Diseases and NYU Medical Center: The Rusk Institute for Rehabilitation Medicine, do not appear to be relevant as this court is unaware that the child suffers from any joints disease or is in need of rehabilitative services (see Pl Exh M). In Brooklyn, MetroPlus is accepted at 11 hospitals (see Pl Exh N). Unlike Empire BCBS, this plan is not accepted at top-rated New York hospitals such as Weill Cornell Medical Center, Columbia University Irving Medical Center, and Brooklyn Methodist Hospital. It is clear that this plan is not equal in quantity or quality to that of Empire BCBS.
The fact that neither the child's past or present pediatrician nor the dentist the child has visited since he was a baby accepts MetroPlus is further evidence that this replacement plan is not substantially similar to Empire BCBS. Plaintiff, herself a health care professional, should know and understand the importance of having a long-term relationship with a doctor, particularly a pediatrician. Pediatricians are in the unique position of watching children grow from infancy to young adult (Susan Slowinski, MD, The Doctor-Patient Relationship: A Pediatrician's Perspective , available at https://www.bmhvt.org/doctor-patient-relationship-pediatricians/ [accessed Apr. 22, 2021]). It takes a considerable amount of time for a child to build a trusting relationship with their pediatrician so the benefit of having one, consistent pediatrician is invaluable (Sebo Marketing, Benefits of Long-Term Relationships with a Pediatrician , available at https://provopediatrics.com/pediatric-care/benefits-of-longterm-pediatrician/ [accessed Apr. 22, 2021]). A long-term pediatrician-child relationship enables the doctor to more effectively determine whether the child is at their healthiest or suffering from a health condition (id. ). The benefits of a long-term pediatrician-child relationship include the doctor's awareness of the child's specific health needs and the doctor's awareness of the most effective treatments for the child's specific health concerns (id. ). "By building a long-term relationship with [a] child's [pediatrician], [the] child will trust their pediatrician, be treated with care, have a complete medical history, and have a treatment plan that works with their life and [their parents]" (id. ).
What is particularly troubling, here, is that Plaintiff had two methods by which she could continue health coverage for the child through Empire BCBS. One, she could have elected COBRA continuation coverage which would have allowed the child to remain with Empire BCBS for a period while Plaintiff procured a substantially similar replacement plan. Alternatively, it appears from Plaintiff's own papers that one of the insurance plans Plaintiff could have chosen was Empire BCBS (see Pl Exh L). Notwithstanding that Empire BCBS was listed among the health insurance options available to Plaintiff, she instead chose a plan that was not accepted by her child's long-term medical providers.
It is also unclear how Plaintiff was able to qualify for MetroPlus as an insurance provider. Child Health Plus through MetroPlus "is a state and federally funded program designed to provide covered health care services on behalf of eligible children through health care organizations approved by the State Commissioner of Health" (Matter of Kimberly R. v Andre N. , 31 Misc 3d 326, 334 [Queens County Family Court 2011] ). The plan is intended to benefit children of low-income families who are not covered by a group health plan from a family member's employment and are ineligible for Medicaid (see id. ). One of the eligibility criteria is that the child must reside in a household " ‘having a gross household income at or below four hundred percent of the non-farm federal poverty level’ " (id. [internal citation omitted ]). Here, Defendant claims, and Plaintiff does not dispute, that Plaintiff makes approximately $130,000 per year as a nurse. Based on this, it does not appear that the low-income eligibility guidelines for MetroPlus are met.
Having considered the parties’ written submissions and the oral argument heard on March 24, 2021, the court concludes that MetroPlus, the replacement health coverage procured by Plaintiff, is not "substantially similar" to the health insurance provided through Plaintiff's previous employer. Accordingly, Plaintiff is directed to procure and maintain replacement health insurance coverage that is substantially similar to Empire BCBS within 30 days of this decision.
Counsel Fees
Defendant moves this court for an award of counsel fees in the amount of $20,000 in connection with his having to file this enforcement application. He submits that in an effort to avoid court intervention, his attorney reached out to Plaintiff's counsel by phone and email to try and resolve the matter (see Def Aff at p6, ¶ 11).
In an enforcement action, a party may seek to recover counsel fees under Domestic Relations Law (DRL) section 238 and pursuant to the terms of a settlement stipulation (see generally Canick v Canick , 122 AD2d 767, 768-69 [2nd Dept 1986] ). "Where, [however], the parties have agreed to provisions in a settlement agreement which govern the award of attorney's fees, the agreement's provisions, rather than statutory provisions, control" ( Sweeney v Sweeney , 71 AD3d 989, 992 [2nd Dept 2010] ; see also Matter of Berns v Halberstam , 46 AD3d 808, 809 [2nd Dept 2007] ; Arato v Arato , 15 AD3d 511, 512 [2nd Dept 2005] ). A provision in a stipulation of settlement which provides for the payment of counsel fees by a defaulting party is a contractual obligation ( Canick , 122 AD2d at 768-69 [2nd Dept 1986] ).
Here, Defendant seeks an award of counsel fees pursuant to the terms of the parties’ agreement, and not under the statute which gives a trial court the discretion to award counsel fees. Article XVIII of the parties’ stipulation, the "Default" article, expressly provides that if a party defaults with respect to any obligation under the agreement, the defaulting party shall compensate the non-defaulting party's reasonable expenses, including attorney's fees, incurred in bringing an enforcement action, provided the action results in a judgment, decree or order in favor of the non-defaulting party (see Stip, p44-45, ¶ 18.1).
Here, the court has determined that MetroPlus, the replacement plan procured by Plaintiff, is not substantially similar to Empire BCBS, the health plan under which the child was covered at the time of the agreement, and has directed Plaintiff to procure and maintain replacement health insurance coverage for the child that is substantially similar to Empire BCBS within 30 days. Thus, pursuant to the terms of the parties’ agreement, Defendant is entitled to an award of counsel fees in connection with this successful enforcement application.
In support of his application for counsel fees, Defendant submits a retainer agreement entered into on March 3, 2020, for post-judgment representation (see Def Exh L). The initial retainer was $10,000 and Defendant's counsel's hourly rate is set forth as $525 per hour (see id. ). On November 19, 2020, the instant OSC for post-judgment relief was filed in Supreme Court. Defendant also annexes invoices reflecting work performed in connection with this enforcement action totaling $12,335 (see Def Exh J, O).
Having considered the terms of the agreement, the merits of the parties’ contentions, and the circumstances of this case, the court finds an award of counsel fees in the amount of $7,500 to be reasonable and necessary (see Sweeney , 71 AD3d at 993 [where stipulation expressly provided for recovery of attorney's fees by non-defaulting party in a successful enforcement application, an award of reasonable attorney's fees should have been awarded]; see also Mons Pinto v Pinto , 151 AD3d 715, 716 [2nd Dept 2017] ["where the plaintiff was compelled to bring a motion to enforce the terms of the stipulation against the defendant and prevailed in doing so, the Supreme Court properly exercised its discretion in awarding her a reasonable attorney's fee"]).
PLAINTIFF'S CROSS-MOTION
Counsel Fees and Sanctions
Plaintiff cross-moves for an order imposing sanctions and awarding her counsel fees in connection with filing the instant Cross-Motion in response to what she characterizes as Defendant's frivolous application. Alternatively, she asserts that she is entitled to counsel fees because of Defendant's violation of the provision in the agreement which requires the parties to jointly consult a qualified expert on conflicts arising from a significant matter involving the child.
22 NYCRR section 130-1.1(a) provides that "[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part." This section further provides that "[i]n addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part." Conduct is considered frivolous if "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" ( 22 NYCRR § 130-1.1 [c]).
Plaintiff contends that Defendant's OSC contains falsehoods and inaccuracies that warrant sanctions. Specifically, she asserts that Defendant failed to identify any perceived deficiencies in MetroPlus or otherwise demonstrate how the plan is not substantially similar to Empire BCBS. Based on the reasons set forth in the preceding section, the court found that MetroPlus is not substantially similar to Empire BCBS. As such, Defendant's application seeking to enforce Plaintiff to comply with her obligation to maintain substantially similar health insurance is not frivolous. Accordingly, Plaintiff's application for sanctions and/or counsel fees on the ground of frivolous conduct is denied.
With respect to the agreement, Plaintiff is correct that there is a provision requiring the parties to jointly consult a qualified expert or professional if there is a disagreement between the parties relating to any non-emergency, significant matter concerning the child (see Stip at p17, ¶6.1[c]). Plaintiff's reliance on this provision, however, is misplaced. This provision, which is contained in Article VI, entitled "Custody and Parenting," pertains to conflicts between the parties regarding their joint legal decision-making responsibilities. In fact, it appears under the subsection "Joint Legal Custody" and, in the event of a disagreement with respect to a legal decision regarding the child, it requires the parties to jointly consult with a qualified expert in the relevant field and gives examples such as "the Child's pediatrician for a medical issue; the Child's dentist for a dental issue; the Child's teacher or guidance counselor for an educational issue; the Child's therapist for a mental health issue" (see id. ). Article VI does not, however, address the financial aspects of supporting the child.
Health insurance is statutorily discussed as a support matter, not a custody matter (see generally DRL § 240 ). Plaintiff's obligation to maintain health insurance for the child is a financial obligation and is thus appropriately addressed in Article VII, the "Child Support" article, of the parties’ stipulation. Contrary to Plaintiff's position, paragraph 6.1(c), which addresses conflicts in legal decision-making, is inapplicable. Neither paragraph 6.1(c) nor any other provision in the parties’ agreement mandates the joint consultation of an expert to resolve an issue regarding the financial wellbeing of the child. Accordingly, Plaintiff's application for an award of sanctions and/or counsel fees based on a violation of the agreement is denied.
CONCLUSION
In accordance with the foregoing, it is hereby:
ORDERED, that Plaintiff is directed to procure and maintain replacement health insurance coverage that is substantially similar to Empire Blue Cross Blue Shield within 30 days of this decision; and it is further
ORDERED, that Defendant is awarded $7,500 as reasonable and necessary counsel fees to be paid directly to Defendant's counsel within thirty (30) days of service of a copy of this decision and order. Defendant's attorney may enter a judgment for the full amount due and owing, plus statutory interest, with the Clerk of the Court upon twenty (20) days written notice of default by certified and regular mail to Plaintiff without further application to this court if Plaintiff fails to make the payment in compliance with this decision and order; and it is further
ORDERED, that Plaintiff's cross-motion is denied in its entirety.
Any issue raised and not decided herein is denied.
This constitutes the decision and order of the court.