Opinion
Index No. 300488/2015
06-20-2024
T.L., Plaintiff, v. P.B., Defendant.
Counsel for Plaintiff: Donohoe Talbert LLP - New York, NY By: Cassandra R. Volkheimer, Esq. Defendant Pro Se
Unpublished Opinion
Counsel for Plaintiff:
Donohoe Talbert LLP - New York, NY
By: Cassandra R. Volkheimer, Esq.
Defendant Pro Se
Ariel D. Chesler, J.
In this post-judgment matrimonial action, plaintiff moves by order to show cause for an order enforcing the Stipulation of Settlement, dated May 31, 2017 (the "Agreement"), by ordering defendant to pay plaintiff: (i) basic child support on or before the first day of each month; (ii) $333.99 in arrears for basic child support; (iii) $3,547.87 in arrears for the cost-of-living adjustments ("COLA") of the basic child support; (iv) $396 for his two-thirds (i.e. 66%) share of the tutoring expenses for the parties' son (the child) (which defendant should pay directly to the provider, Next Level Learning Center); (v) $1,149 for defendant's outstanding portion of the child's neuropsychological evaluation; and to provide plaintiff with (vi) quarterly statements for the child's 529 account, in accordance with article XI of the Agreement; and (vii) proof that Defendant has fulfilled his life insurance obligations pursuant to article XV of the Agreement, as well as an order directing defendant to pay plaintiff's counsel fees in an amount determined by the court but no less than $12,500, without prejudice to future applications for defendant's defaults of the Agreement requiring plaintiff to bring the instant motion. All other issues raised in the instant motion have been previously decided.
Defendant opposes.
BACKGROUND
The parties were married on March 18, 2006. Both plaintiff and defendant are 54 years old. Plaintiff is a speech pathologist. Defendant is self-employed through his company [REDACTED]. There is one child of the marriage, C.A.B. The divorce action commenced on January 15, 2015.
On November 9, 2016, the parties entered into a "Parenting Stipulation" resolving custody as well as all parenting issues with respect to the child. Under the terms of the Parenting Stipulation, both parties retained joint legal and physical custody of the child, with plaintiff maintaining "the primary residential parent for child support purposes" (Parenting Stipulation, ¶ 1.2).
On May 31, 2017, the parties entered into a "Stipulation of Settlement." A judgment of divorce was entered on August 17, 2017.
Pursuant to article X, entitled "Basic Child Support," the parties agreed that defendant would pay basic child support to plaintiff in the amount of $2,833.22 per month by electronic transfer so designated by plaintiff (Stipulation of Settlement, ¶ 10.1). In addition, the parties agreed to a cost-of-living adjustment (COLA) "from time to time, based upon changes in the Consumer Price Index" as set "for All Urban Consumers, New York-Northern New Jersey-Long Island,... as published monthly by the Bureau of Labor Statistics of the U.S. Department of Labor" (id., ¶ 10.2, 10.2 [a]). The base index was set at 267.948, and current index was defined as "the Index for the April immediately preceding the Adjustment Date," which, in turn, was agreed to "mean June 1, 2018 and every June 1st every two years thereafter (e.g., June 1, 2020, June 1, 2022, June 1, 2024 etc.)" (id., ¶ 10.2. [b], [c] & [d]).
"If, on an Adjustment Date, the Current Index does not equal the Base Index, then the Basic Child Support shall be adjusted, so that the Basic Child Support is equal to the Basic Child Support multiplied by the fraction equal to the Current Index divided by the Base Index. [Defendant] shall pay to [plaintiff] the adjusted Basic Child Support each month thereafter pursuant to the terms set forth in the Article unless there shall be a further increase or decrease on a subsequent Adjustment Date" (id., ¶ 10.2 [e]).
Under article XI, entitled "Child's Add-On Expense," the parties agreed that defendant would "pay two-thirds" and plaintiff would "pay one-third of the add-on expenses, which includes, among other things, [t]he Child's 'Educational Expenses,' which are defined as expenses for tutoring..." (Stipulation of Settlement, ¶ 11.1, 11.1 [c]). Further, the parties agreed that
"to the extent feasible, each party shall pay directly to the provider, in the first instance, all expenses for which he or she is responsible pursuant to this Article. Each party shall cooperate to provide invoices, bills and notices to the other party by email promptly after his or her receipt thereof. The parties shall not use the Child to send invoices, bills or notices to the other party. In the event that a party advances funds for any expense for which the other party is responsible pursuant to this Article, within fifteen (15) days after presentation to him or her of documentation thereof, the other party shall reimburse the party that advanced the funds for the share for which the other party is responsible" (id., ¶ 11.2).
Additionally, under paragraph 11.1 (d) of article XI, defendant is to provide plaintiff with quarterly statements of the child's 529 account.
Under article XV, entitled "Life Insurance" the parties agreed that
"[Defendant] agrees to maintain and keep in full force and effect insurance on his life having an aggregate death benefit of One Million ($1,000,000) Dollars which shall be for the benefit of the Wife, as trustee for the Child, until an Emancipation Event occurs with respect to the Child. On an annual basis, commencing as of June 1, 2018, and each June 1st thereafter, [defendant] shall be entitled to reduce the aggregate death benefit for the benefits of [plaintiff], as trustee for the Child, by Seventy Five Thousand ($75,000) Dollars per year" (id., ¶ 15.1).
Further, they agreed that "[w]ithin 60 days after the execution of this Stipulation, [defendant] shall deliver to [plaintiff] a certificate or other instrument evidencing such designation of [plaintiff], as trustee, as the beneficiary of said insurance" (id., ¶ 15.2). Further, defendant "agree[d]... to pay or cause to be paid all premiums, dues and assessments on said insurance policy or policies at least fifteen (15) days prior to the grace date thereof[; and] to transmit to [plaintiff], upon written request by her, receipts showing such premiums, dues and assessments have been paid" (id., ¶ 15.4).
Pursuant to Article XXIII of the Agreement ("Default"), defendant is required to pay plaintiff's legal fees for his various defaults of the Agreement:
"23.1 In the event that either party defaults with respect to any obligation under this Stipulation and said default is not remedied within thirty (30) days after the sending of a written notice by (i) certified mail or overnight mail, and (ii) email to the defaulting party specifying said default, the defaulting party agrees to indemnify the other party against or to reimburse such other party for all reasonable expenses, costs and attorney's fees and disbursements resulting from or made necessary by the bringing of any suit or other proceeding to enforce any of the terms, covenants or conditions of this Stipulation to be performed or complied with by the defaulting party or to enforce any of the other party's rights to recover any amount to be paid to him or her by the defaulting party pursuant to this Stipulation, provided such suit or other proceeding results in a judgment, decree or order in favor of the party seeking to enforce said indemnity.
23.2 For the purposes of this Stipulation, it is understood and agreed that in the event that either party shall institute a suit or other proceeding against the other party to enforce any of the terms, covenants or conditions of this Stipulation and after the institution of such action or proceeding and before judgment is or can be entered the defaulting party shall comply with such term or condition of the Stipulation, then and in that event, the suit, motion or proceeding instituted by the other party shall be deemed to have resulted in a judgment, decree or order in favor of that party" (id. at ¶¶ 23.1 and 23.2).
The parties agreed that notices to be sent to either party would be deemed sufficient if sent by certified or overnight mail to the parties' respective addresses as designated in the Stipulation, by email as provided therein or to such other address which plaintiff or defendant advised the other of in writing in order to send such notices (id., article XXIV "Notices", ¶¶ 24.1, 24.2). Further, a written acknowledgment of receipt of notice was deemed acceptable "if signed by the party to whom the notice is addressed or sent by the recipient by reply email," in which case overnight or certified mail is not required (id., ¶ 24.3).
DISCUSSION
The terms of a separation agreement "incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties" (Matter of Gravlin v Ruppert, 98 N.Y.2d 1, 5 [2002]). Further, "'[a] matrimonial settlement is a contract subject to principles of contract interpretation... [and] a court should interpret the contract in accordance with its plain and ordinary meaning'" (Herzfeld v Herzfeld, 50 A.D.3d 851, 851 [2d Dept 2008] [citation omitted]). Where a matrimonial settlement "is clear and unambiguous on its face, the parties' intent must be construed from the four corners of the agreement, and not from extrinsic evidence" (Herzfeld v Herzfeld, 50 A.D.3d at 851-852). "An ambiguity exists only where 'the agreement on its face is reasonably susceptible to more than one interpretation'" (Rosenberger v Rosenberger, 63 A.D.3d 898, 899 [2d Dept 2009] [citation omitted]).
I. Basic Child Support Obligation & Arrears
"Domestic Relations Law § 244 provides for entry of a judgment for arrears in payments directed to be made during an action for divorce, separation or annulment upon application of the aggrieved party to the court" (Greenberg v Greenberg, 218 A.D.2d 558, 560 [1st Dept 1995]). This also includes when there is a "default in the payment of a sum of money" owed to a former spouse pursuant to a judgment of divorce or settlement agreement "incorporated but not merged in the divorce judgment" (Gasparek v Gasparek, 230 A.D.2d 710, 710 [2d Dept 1996]).
"The court is mandated to direct the entry of judgment for arrears 'unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears'" (Johnston v Johnston, 115 A.D.2d 520, 521 [2d Dept 1985], quoting DRL § 244). Furthermore, DRL § 244 provides for interest on the amount of arrears reduced to judgment, if the default was willful. The interest is to be calculated from the date when the payment was due, at the prevailing rate of interest on judgments as provided in the CPLR (Racz v Racz, 194 A.D.2d 401 [1st Dept 1993]; Lewis v Weiner, 191 A.D.2d 172 [1st Dept 1993]).
Plaintiff claims that defendant is consistently late on his child support payments, submitting payments anywhere from four days to 17 days after they are due. She seeks an order requiring defendant to timely make his payments as agreed to in the Stipulation of Settlement. Defendant admits to being tardy on his child support payments but claims that he has been living off his retirement, sold off his assets and is without sufficient means to make the monthly payments. Defendant also notes that he has made a motion for downward modification due to these circumstances. However, as it pertains to the instant motion, the court agrees that defendant must be timely in his child support payments and orders him to do as such. Accordingly, plaintiff's request for an Order directing defendant to tender his child support payments on the first of every month is GRANTED.
In addition, plaintiff claims that defendant is in arrears of $333.99 for basic child support for the months of November 2020, February 2021, July 2021 and August 2021, as defendant unilaterally decided to deduct amounts from plaintiff's child support payments for expenses he paid for the child. Defendant claims that he is current on the basic child support, and that the $333 payment was part of a larger mid-month payment totaling $838.33 paid via Venmo on August 19, 2021. Neither party submits evidence that sufficiently reflects what was owed versus what was paid; an incomplete collection of screenshots of select child support payments made via Venmo does not suffice. As such, this branch of the motion is DENIED.
II. Cost-of-Living Adjustment Arrears
Plaintiff argues that as of the date of the motion, defendant has not made any increased child support payments for the COLA as required under paragraph 10.2 of the Stipulation of Settlement. Plaintiff claims that defendant owes her $3,547.87 in COLA arrears from June 2018 through October 2021. Defendant counters that he cannot afford the COLA payments and that he will file an objection to any COLA increases.
Here, the parties stipulated that there would be a COLA adjustment every two years as it pertained to basic child support (Stipulation of Settlement, ¶ 10.2). Plaintiff submits evidence of the Consumer Price Index for all Urban Consumers in New York-Newark-New Jersey, NY-NJ-PA for the years 2011 to 2021. Defendant does not dispute this showing. Plaintiff therefore has met her burden of proving the arrears due and owing. Defendant's sole defense to nonpayment is that he cannot afford the payment, however, he made no showing of his financial status in the instant motion, and therefore, has not "demonstrate[d] good cause for failing to pay or make an application for relieve from the COLA requirement" (R.E. v S.E., 27 Misc.3d 1216 [A], 2010 NY Slip Op 50766[u], *2 [Sup Ct, NY County 2010]). Plaintiff therefore is entitled to judgment in the amount of $3,547.87 (id., citing DRL § 244; Gunsburg v Gunsburg, 173 A.D.2d 232, 233 [1st Dept 1991]). Accordingly, plaintiff's request for COLA arrears in the amount of $3,547.87 is GRANTED.
III. Tutoring Add-On Expense Arrears
Plaintiff seeks reimbursement in the amount of $396 to be paid directly to Next Level Learning Center, which represents his two-thirds share for tutoring expenses as the parties' agreed (Stipulation of Settlement, ¶ 11.2). Defendant does not dispute that the monies are owed but argues that he should not responsible for the cost as he was not consulted about it. He claims that plaintiff has never paid him for any add-on expense he pays for the child simply because plaintiff does not agree with the expenses and refuses to split the cost. Plaintiff does not dispute defendant's claim but counters that defendant was consulted about the expense in August 2021, and that he refuses to contribute.
Defendant appears to argue that the issue is for arbitration. Under the terms of the agreement, ¶ 11.1, "[i]n the event there is a disagreement between the parties as to whether an expense paid by a party constitutes an add-on expense for which the other party is responsible for payment pursuant to this Stipulation, the issue shall be submitted for arbitration The decision of the Arbitrator shall be final and binding upon the parties." Here, however, it is clear that tutoring expenses, as defined under the agreement are education expenses which fall under the ambit of add-on expenses (see Stipulation of Settlement, article XI, ¶¶ 11.1, 11.1 [c]). Therefore, there is no dispute that tutoring expense "constitute[] an add-on expense[]" and the issue is not one for arbitration.
Further, the agreement provides that the parties are to pay their respective shares of the add-on expenses provided that the add-ons "have been agreed to by both parties in advance," and that such "agreement shall not be unreasonably withheld" (id., ¶ 11.1). On the morning the child was to begin tutoring at Next Level, plaintiff sent an email to defendant stating that the child "starts the tutor today for the TACHS test and SHSAT. [I]t is $150/ hour. Will you be paying your share via Venmo? If you have any questions, please speak with Val at Level Up Learning Center. She is phenomenal" (NYSCEF Doc. No. 58). Plaintiff failed to sustain her burden of showing any proof that the defendant had acquiesced to the expense; and therefore, this branch of the motion is DENIED.
IV. Psychotherapeutic Care Add-On Arrears
Plaintiff claims that defendant owes her his outstanding portion of the child's neuropsychological evaluation in the amount of $1,149, which is 66% of the total cost of $2,650). According to plaintiff, defendant paid $600 directly to the provider, [REDACTED] leaving a balance of $1,149, which plaintiff paid, so that the monies owed should be directly paid to plaintiff.
Defendant claims that he has paid $1,800 towards this expense, despite not being consulted with as required under the agreement, and submits a [REDACTED] statement dated September 1 - September 30, 2019 reflecting a payment on September 2, 2019 to "SUNY College of Opt" in the amount of $1,200 (see NYSCEF Doc. No. 49). The court finds this evidence sufficient to defeat this branch of the motion by plaintiff.
Accordingly, the branch of the motion is DENIED.
V. 529 Account Statements
Plaintiff claims that defendant has not adequately provided the quarterly statements of the child's 529 account as required under the Stipulation of Settlement and is in default. Specifically, after sending defendant the default letter, he has provided plaintiff with one statement, but has failed to provide the additional statements owed or any subsequent statements thereafter. Plaintiff seeks an order requiring him to provide her with all quarterly statements, not screenshots, for the child's 529 account as agreed, suggesting that defendant authorize the institution holding the account to send statements directly to plaintiff. Defendant counters that the child's 529 account has a balance, as of February 20, 2023, totaling $212,256.91, and that he has provided plaintiff and her counsel with the 529 statements in accordance with article XI. Defendant also avers that on September 3, 2022, he sent plaintiff's counsel the statement. Subsequently, on February 11, 2023, defendant sent plaintiff a screenshot of the 2022 4th quarter totals, to which she responded, "statements are to be sent to me quarterly -not screenshots."
The court reminds defendant that going forward any and all quarterly statements of the child's 529 account shall be sent to plaintiff as delineated in the Stipulation of Settlement. Accordingly, Plaintiff's request as it relates to 529 Accounts is DENIED.
VI. Defendant's Life Insurance Policy
Plaintiff asserts that defendant has not provided her with a copy of his life insurance as required under article XV of the Agreement. Defendant counters that he has a $250,000 life insurance policy administered by Haven Life, policy no. 4100287511. Defendant, however, provides no documentation to substantiate this. Even though such a policy may exist, as of the date of the motion and as provided under the agreement, the policy is insufficient as defendant was required to maintain a policy in the amount of $625,000 (see Stipulation of Settlement, ¶ 15.1).
The court, therefore, orders defendant to comply with the terms of the Stipulation of Settlement and provide plaintiff with documentation reflecting completion of the same within fourteen (14) days of service of this Decision and Order with Notice of Entry. Accordingly, Plaintiff's request as it relates to Defendant's Life Insurance Policy is GRANTED.
VII. Counsel Fees
Plaintiff seeks $12,500 in counsel fees based on defendant's alleged defaults of the Stipulation of Settlement. Defendant opposes and asserts that each party should bear their own counsel fee costs incurred in connection with the instant motion.
Under the terms of the agreement, if either party defaults "with respect to any obligation under this Stipulation and said default is not remedied within [30] days after the sending of written notice"... "the defaulting party agrees to indemnify the other party against or reimburse such other party for all reasonable expenses, costs and attorney's fees and disbursements resulting from or made necessary... to enforce the terms... of this Stipulation... provided such suit or other proceeding results in a judgment, decree or order in favor of the party seeking to enforce said indemnity" (Stipulation of Settlement, ¶ 23.1).
"Where 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" (Allen v Allen, 195 A.D.3d 669, 670 [2d Dept 2021] [internal quotation marks and citation omitted]). Here, the parties' stipulation of settlement provides for an award of reasonable attorney's fees where a default by one party results in a judgment in favor of the other party.
The court considered the remainder of the arguments and finds them to be without merit.