Opinion
XXXXX
10-30-2019
TATYANA B., Plaintiff, v. HAIM B., Defendant.
Ella Royzman, PLLC, By: Ella Royzman, Esq., 1101 Avenue U, 2nd Floor, Brooklyn, New York 11223, Attorney for Plaintiff. Levitsky Law Firm, By: Joanna Zieba, Esq, Yuriy Yaroslavskiy, Esq., 3163 Coney Island Avenue, 2nd Floor, Brooklyn, New York 11235, Attorney for Defendant.
Ella Royzman, PLLC, By: Ella Royzman, Esq., 1101 Avenue U, 2nd Floor, Brooklyn, New York 11223, Attorney for Plaintiff.
Levitsky Law Firm, By: Joanna Zieba, Esq, Yuriy Yaroslavskiy, Esq., 3163 Coney Island Avenue, 2nd Floor, Brooklyn, New York 11235, Attorney for Defendant.
Jeffrey S. Sunshine, J.
Plenary Action
In this post judgment application, the Defendant's attempt to attack the separation agreement by way of Order to Show Cause without commencing a plenary action, is denied. Defendant brought the instant application on as an Order to Show Cause, rather than a plenary action, therefore, this issue is not properly before this Court and is procedurally barred and must be denied.
In the Second Department, it is well established that parties who desire to vacate a settlement agreement that was incorporated but not merged into the judgment of divorce must do so through a plenary action. See Alton v. Alton , 83 AD3d 972, 973 [2nd Dept. 2011] ; Barany v. Barany , 71 AD3d 613, 614 [2nd Dept. 2010] ; Makara v. Makara , 65 AD3d 1018, 109 [2nd Dept. 2009] ; Reiter v. Reiter , 39 AD3d 616 [2nd Dept. 2007] ; Candela v. Kiel , 33 AD3d 833, 834 [2nd Dept. 2006] ; Sloboda v. Sloboda , 24 AD3d 533, 535 [2nd Dept. 2005] ; Gottlieb v. Gottlieb , 294 AD2d 537, 538 [2nd Dept. 2002] ; Spataro v. Spataro , 268 AD2d 467, 468 [2nd Dept. 2000] ; Dombrowski v. Dombrowski , 239 AD2d 460 [2nd Dept. 1997] ; Fine v. Fine , 191 AD2d 410, 411 [2nd Dept. 1993] ; Riley v. Riley , 179 AD2d 750 [2nd Dept. 1992] ; Lambert v. Lambert , 142 AD2d 557 [2nd Dept. 1988] ; Culp v. Culp , 117 AD2d 700, 701 [2nd Dept. 1986].
"A separation agreement which does not merge into the judgment of divorce survives as a separate contract to which the parties are bound. Consequently, while a judgment of divorce may be attacked pursuant to CPLR 5015, the separation agreement will remain unimpeached unless challenged in a plenary action" (See Riley v. Riley , 179 AD2d 750 [2nd Dept. 1992] ; Lambert v. Lambert , 142 AD2d 557 [2nd Dept. 1988] ; Culp v. Culp , 117 AD2d 700, 701 [2nd Dept. 1986] ).
Child Support Standards Act
It appears that the Defendant was in fact advised of his rights under the CSSA, as he expressly acknowledged such in the signed stipulation. Moreover, the judgment of divorce indicates that the Defendant received a copy of the CSSA Chart. Without providing this Court with any evidence to support his allegation, the Court believes that the Defendant was fully aware of his rights and obligations under the CSSA and the child support provision and the upward deviation in the parties' agreement. There is a full recitation of the CSSA calculations and the deviations. It should be noted that the Defendant does have the right to seek recalculation of Child Support without the need to vacate the entire agreement if the statutory calculations were not in the stipulation.(See : Farca v. Farca , 271 AD2d 482, 483 [2nd Dept. 2000] ; Gaetano v. Gaetano , 92 AD2d 909 [2nd Depart. 1983] ) and while he asserts that he is entitled to a recalculation of Child Support he fails to attach an affidavit of net-worth. See: 22 NYCRR § 202.16 (k) (2)
"(k) Motions for alimony, maintenance, counsel fees pendente lite and child support (other than under section 237(c) or section 238 of the Domestic Relations Law ). Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237(c) or section 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof:......
(2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section."
Pursuant to the Family Court Act, unrepresented parties are to be given a copy of the CSSA Chart before any final order of child support is entered by the court. NY Fam. Law § 413 (10)(i) (McKinney 2016). " Domestic Relations Law § 240 (1-b) (h) requires that any agreement or stipulation voluntarily entered into between the parties, and presented to the court for incorporation in an order or judgment, must include provisions: (1) stating that the parties have been advised of the provisions of the CSSA; (2) stating that the basic child support provisions of the CSSA would presumptively result in the determination of the correct amount of child support to be awarded; (3) stating what the amount of basic child support would have been if calculated pursuant to the CSSA, if the parties' stipulation or agreement deviates from the basic child support obligation; and (4) setting forth the parties' reason or reasons for deviating from the CSSA calculation, if they have chosen to deviate." The requirements of Domestic Relations Law § 240 (1-b) (h) may not be waived by either party or by counsel." (See DRL § 240 (1-b) (h) ) "Where the parties' stipulation or agreement fails to comply with the requirements of Domestic Relations Law § 240 (1-b) (h), it is fundamental that the basic child support provisions of the agreement are invalid and cannot be enforced. That portion of the agreement must be set aside and the parties' basic child support obligation must be recalculated through the application of the CSSA" (see Cimons v. Cimons , 53 AD3d 125, 861 N.Y.S.2d 88, Calian v. Calian , 28 AD3d 506, 814 NYS2d 649 [2006] ; Warnecke v. Warnecke , 12 AD3d 502, 784 NYS2d 631 [2004] ). "The Supreme Court properly determined that the stipulation failed to comply with Domestic Relations Law § 240 (1-b) (h), and that the provisions of the stipulation relating to child support were invalid" (see Arato v. Arato , 15 A.D. 3d 511, 790 N.Y.S.2d 203, [ 2nd Dept. 2005] ; Backhaus v. Backhaus , 288 AD2d 411, 733 NYS2d 904 [2nd Dept.2001] ; Tolchin v. Freeman , 275 AD2d 452, 713 NYS2d 67 [2nd Dept.2000] ; Farca v. Farca , 271 AD2d 482, 705 NYS2d 402 [2nd Dept. 2000] ; Tartaglia v. Tartaglia , 260 AD2d 628, 689 NYS2d 180 [2nd Dept. 1999] ).
In Farca v. Farca , the Second Department vacated the child support provision of the parties' stipulation and ordered a de novo determination of the proper child support on remand, when the unrepresented Defendant was not provided with the CSSA Chart and the agreement did not state the basic amount of child support he would have paid under the CSSA. Farca v. Farca , 271 AD2d 482, 483 [2nd Dept. 2000]. [Underline added] In Farca the Second Department stated: "Since the Plaintiff waived maintenance and equitable distribution of property based upon the understanding that she would receive child support of $ 800 per week, we vacate the financial provisions of the parties' stipulation and the corresponding provisions of the judgment of divorce, and remit the matter to the Supreme Court, Kings County, for a de novo determination of the financial issues" (see , Farca v. Farca , 271 AD2d 482, 483 [2nd Dept. 2000] ; Gaetano v. Gaetano , 92 AD2d 909 [2nd Depart. 1983] ).
In Farca , the Defendant was not provided with the CSSA Chart and significantly the parties agreement also did not state the basic amount of child support under the CSSA (see , Farca v. Farca , 271 AD2d 482, 483 ). In the instant case, although the Defendant asserts he did not receive the CSSA chart, the parties agreement did contain the basic amount of child support under the CSSA, as well as the upward deviation language and full calculations and reasons for the deviation as required. Furthermore there is a judicial finding of such in the judgment of divorce dated April 27, 2018, that the parties received a copy of the chart as well.
Disqualification of Plaintiff's Attorney
The Defendant's claim that he was represented by Plaintiff's counsel and therefore the agreement is void or unfair is denied on its face and based upon the language in the agreement as it is a mere conclusory allegation and falls to meet the burden.
It is well established that in New York, "To prove an attorney-client relationship, there must be an explicit undertaking to ‘perform a specific task.’ " Lombardi , 127 AD3d 1038, 1042 [2 Dept.,2015] (quoting Nelson v. Roth , 69 AD3d 912, 913 [2nd Dept. 2010], quoting Terio v. Spodek , 63 AD3d 719, 721 [2nd Dept. 2009] ). The unilateral belief of a party alone does not confer upon him or her the status of a client. Lombardi , 127 AD3d at 1042 ; See Moran v. Hurst , 32 AD3d 909, 911 [2nd Dept. 2006]. An attorney-client relationship does not depend on the existence of a formal retainer agreement or payment of fees, therefore, a court must look at the words and actions of the parties to determine if such a relationship exists. Moran , 32 AD2d at 911.
The Defendant's moving papers are void of any evidence that he met or consulted with the attorney or had any form of telecommunications with the attorney. In fact, both parties concede that the Defendant did not have any contact with Plaintiff's attorney. The only communication between the Defendant and the attorney was the April 21, 2017, email where the Defendant asked for an extension to respond in order to consult with an attorney, which by itself indicates Defendant knew Plaintiff's counsel was not his attorney. Furthermore the Defendant's name is not on the retainer agreement, only the Plaintiff's. Moreover, the January 30, 2017 letter sent to Defendant's former address, as well as the PDF document attached to the April 21 email, contained a letter advising Defendant that Plaintiff's attorney is not his attorney and he should consider consulting with or obtaining counsel of his own.
The parties' marital stipulation contains expressed acknowledgments by the Defendant that he was aware of his legal right to seek and/or obtain counsel. Article VIII provides that the Defendant shall be responsible for paying $2,500 towards the Plaintiff's counsel and legal fees, not the parties counsel and legal fees. Pursuant to Article IIVI [sic ] (p. 26) of the parties' stipulation, they acknowledge that they are:
"entering into this Stipulation freely and voluntarily; that they have ascertained and weighed all the facts and circumstances likely to influence their judgment herein; that they had the opportunity to seek and obtain legal representation independently of each other; that they understand their respective legal rights to their respective satisfaction; that all the provisions of this Stipulation are fully and satisfactorily understood by them; that they have given due consideration to such provisions, and that they clearly understand and assent to all provisions thereof."
Article IIVI [sic ] (page. 26) also provides the names of the attorneys that represented the parties. The Plaintiff's attorney is listed next to the Plaintiff and there is no attorney listed next to the Defendant's name, just a series of blank lines. The Defendant also failed to fill in the attorney's name or asked that the attorney's name be placed in the blank space before he signed it, if he truly believed she was his attorney. Defendant's allegations that the attorney left the space blank because she represented him as well are not plausible on its face. The Court notes that Plaintiff took the position that the space was left blank for the Defendant to fill in the information of his attorney, as he mentioned he would be consulting one. The Defendant in his Affidavit of Opposition to Plaintiff's Cross Motion requested the ten (10) mile radius restriction because he "was told that this was at least some type of protection for me." Defendant does not divulge who gave him the advice to ask for such a provision, but it appears that the Defendant was getting assistance from an outside source.
Defendant's allegations that "had he known" the child support was an upward deviation he would not have agreed to it, and that he did not receive the Child Support Standards Act ("CSSA") and the Child Support Standards Chart ("CSSA Chart") are belied by the record. According to the parties' Marital Stipulation, parties initial, signed, and notarized that they acknowledge that they have been advised of the CSSA, reviewed the provisions, understood them and had the opportunity to obtain legal advice regarding their respective pro rata shares and the statutory factors that warrant the upward deviation in support. The exact calculations of what would be paid under the act and the amount of the upward deviation are recited in the agreement.
Sanctions
The request for sanctions is denied on these applications without prejudice. While it is curious that this application by the Defendant was brought only after Plaintiff sought enforcement previously, the Court does not believe sanctions herein are warranted.
Pursuant to rule N.Y.Ct. Rule § 130-1.1(a)(b), the court may use its discretion and issue sanctions in addition to or in lieu of awarding costs against either an attorney, a party to the litigation, or against both for frivolous conduct. Frivolous conduct is: (1) completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another or; (3) asserts material factual statements that are false. N.Y.Ct. Rule § 130-1.1(c). In determining if conduct is frivolous, the court will consider, inter alia : (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct and; (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party. N.Y.Ct. Rule § 130-1.1(c).
The actions of the Defendant in commencing the request for post judgment relief does not rise to the level to warrant sanctions. See Tamburello v. Tamburello , 165 AD3d 1006, 1008 [2nd Dept. 2018] ;(finding that sanctions should be imposed on Defendant's attorney who tried to argue that an affidavit in support replaced the parties' prenuptial agreement at a non-jury trial after the Supreme Court granted Plaintiff's motion to preclude Defendant's attorney from doing so); Weissman v. Weissman , 116 AD3d 848, 849 [2nd Dept. 2014] (finding that sanctions were warranted on Plaintiff, who after seeking to vacate the parties' stipulation on more than one occasion, each being denied by both the Supreme Court and Appellate Division, filed to vacate the agreement yet again, and was enjoined from making any additional motions without obtaining leave of court and proceeded to make two motions without leave of court) Schwab v. Phillips , 78 AD3d 1036 [2nd Dept. 2010] (finding that sanctions should be imposed when wife's attorney deposited funds from the sale of martial property into his attorney escrow account and during the pendency of the divorce action issued a check to the wife in an amount equal to one half of the deposited funds, thereby violating the parties' stipulation agreement and falsely representing that he was unaware of the stipulation). The appropriate remedy for bringing this application is an award of counsel fees.
Attorneys Fees
Pursuant to the parties' original stipulation the Defendant is ORDERED to pay the Plaintiff's (who is the successful party herein) counsel fees in the amount of $5,277.50, the amount requested, for his failed attempt to vacate the judgment of divorce and settlement agreement by way of post-judgment relief, his specious claim of a conflict of interest and not knowing the details of the deviation.
"Where a stipulation of settlement provides the basis for an award of an attorney's fee, the terms of the agreement control." Arato v. Arato , 15 AD3d 511, 512 [2nd Dept. 2005] ; See Sweeney v. Sweeney , 71 AD3d 989, 992 [2nd Dept. 2010] ; Berns v. Halberstam , 46 AD3d 808, 809 [2nd Dept. 2007] (finding that where the parties agreed to provisions in their settlement agreement that govern the award of attorney's fees, the provisions are controlling rather than statutory provisions); Clemens v. Clemens , 130 AD2d 455, 456 [2nd Dept. 1987]
Plaintiff is seeking $5,277.50, which was evidenced by attached bills and retainer ($1,500 retainer, $350 per hour for attorney work and $150 per hour for other staff work), in legal fees and Defendant is seeking legal fees as well, however, it is unclear how much the Defendant is seeking, as he did not attach an invoice for the costs incurred in preparing the instant action; all the Defendant provided the Court was his retainer agreement, which amounted to $2,500. It should be noted that:
Article XXII subsection B of the parties' Marital Stipulation states that:
"if either party attempts by any action, proceeding, defense, counterclaim, motion or otherwise seeks to vacate or to set aside this Stipulation or declare any of its provisions, terms, or conditions as invalid, void, or against public policy, by any reasons, including but not limited to fraud, duress, coercion, incompetence, overreaching, unfairness, unconscionablity, and is unsuccessful in such attempt, that party shall reimburse the prevailing party and be liable for all the reasonable attorney's fees and expenses of the prevailing party."
The Defendant is not entitled to counsel fees. The fees requested by the Plaintiff and the documentary evidence presented clearly support the request. It appears to be both fair and reasonable. The Defendant shall pay said sum to Plaintiff's counsel within 30 days of service upon Defendant's counsel of a copy of this decision and order. If Defendant fails to make payment in full, counsel may file a judgment with the clerk of the court on ten days notice by certified mail together with statutory costs and interest without the need for further court intervention.
This constitutes the decision and order of the Court