Opinion
36794/2016
04-11-2019
S.F.S., Plaintiff, v. A.L.S., Defendant.
Attorney for Plaintiff-David J. Seidemann, Seidemann and Mermelstein, 974 East 27th Street, Brooklyn, NY 11210 Attorney for Defendant-Wendy Sonnenborn, Esq., 123-35 82nd Road, Jamaica, NY 11415
Attorney for Plaintiff-David J. Seidemann, Seidemann and Mermelstein, 974 East 27th Street, Brooklyn, NY 11210
Attorney for Defendant-Wendy Sonnenborn, Esq., 123-35 82nd Road, Jamaica, NY 11415
Llinet M. Rosado, J.
This action for divorce was commenced by November 4, 2016. On March 12, 2018, the parties, their attorneys and a court-appointed attorney for the children, entered in a stipulation resolving the issues of custody and visitation. The parties, represented by their attorneys, entered into a final stipulation of settlement of ancillary issues, the general parameters of which were placed on the record before this court on August 6, 2018. The parties were directed to appear on August 20, 2018, for an inquest, with their global stipulation of settlement. A stipulation was not submitted, and the action was adjourned to October 11, 2018, for an inquest.
The defendant moved by Order to Show Cause, dated October 9, 2018, for an order: confirming the terms in the parties' final stipulation of settlement, and the terms of the custody agreement; vitiating any claims by plaintiff as against any proceeds to be realized by defendant in his lawsuit against Montefiore Health System; and awarding defendant counsel fees in the amount of $ 12,500.00 for the making of the motion and all legal services provided after August 6, 2018.
The plaintiff moved by Notice of Cross Motion, dated October 22, 2018, for an order: enforcing a plain reading of the parties stipulation; fixing life insurance in an amount sufficient to insure support for the minor children; directing all future payments of support through Child Support Collection Unit; for counsel fees for the making of the motion and for such other and further relief as this court deems just and fair.
Both applications are hereby consolidated for the purpose of this decision.
The parties' applications for an order confirming the terms of the parties stipulations are granted to the extent that the court finds the terms of the agreements were clear and unambiguous, made voluntarily, absent fraud or duress, and were entered into by the parties with the advice of counsel. The stipulations should be interpreted "in accordance with [their] plain and ordinary meaning." Ackerman v. Ackerman , 82 AD3d 1020 (2nd Dept. 2011).
Defendant's application for an order vitiating any claims plaintiff may have now or in the future as to any proceeds realized by defendant as a result of defendant's law suit against Montefiore Hospital is denied for failure to state a basis in fact or law for the relief requested. Plaintiff's application for an order fixing the terms for life insurance, and directing all future payments of support through Child Support Collection Unit is denied. These were not indicated as terms of the parties agreement as placed on the record, and the court will not modify their agreement beyond its terms. Korosh v. Korosh, 99 AD3d 909 (2nd Dept. 2012).
Plaintiff moved by Notice of Motion, dated October 24, 2018, for an order compelling the defendant to comply with this court's orders of support. Plaintiff refers to the parties' so-ordered stipulation, dated May 3, 2017, wherein defendant agreed, inter alia, to pay 38% of child expenses incurred for school, nanny, medicals and summer camp directly to the providers, pending further order of the court; this court's order, dated June 21, 2017, directing defendant to pay monthly child support, pendente lite, in the amount of $ 1,973.98, and retroactive arrears in the amount of $ 500.00 per month; and the so-ordered stipulation dated September 14, 2017, wherein defendant agreed, inter alia, to reimburse plaintiff for the pro rata share of tuition for the previous year. Plaintiff contends that defendant has disregarded the orders of the court, has been delinquent in payment of arrears, has unilaterally reduced the amount of court ordered pendente lite child support payments, and failed to pay add-ons. In opposition, defendant has submitted an affirmation and an attorney's affirmation in opposition. By his affirmation, defendant concedes that he both voluntarily reduced child support payments according to his own calculations, and that he was delinquent in court ordered payments.
The defendant is required to obey the terms of the court's pendente lite orders while the action is pending. Fotiadis v. Fotiadis, 18 AD3d 699 (2nd Dept. 2005). There is no dispute that the orders have not been modified, and the action for divorce remains open, as no judgment has been submitted or signed. "The pendente lite orders remain in full force and effect." See Bristow v. Bristow , 58 Misc 3d 1023, 2018 NY Slip Op. 28023.
Defendant's and plaintiff's applications for counsel fees are denied, as counsel fees were waived by both parties on the record on August 6, 2018.
Accordingly, it is hereby
ORDERED, defendant is to comply with the terms of this court's pendente lite orders while this action is pending; and it is further
ORDERED, the parties are directed to submit their executed and acknowledged final stipulation of settlement to the court on or before May 1, 2019; and it is further
ORDERED, the parties are directed to appear for an inquest on May 16, 2019, at 9:30 a.m., room 601, at 851 Grand Concourse, Room 601, Bronx, NY
This constitutes the decision and order of the court.