Opinion
No. 2002–8390.
08-02-2017
Maria ZUIKA, Plaintiff, v. Aldis ZUIKA, Defendant.
Vincent M. Ferrero, Esq., Rochester, for plaintiff. Gabriella MacDonald, Esq., Rochester, for defendant.
Vincent M. Ferrero, Esq., Rochester, for plaintiff.
Gabriella MacDonald, Esq., Rochester, for defendant.
RICHARD A. DOLLINGER, J.
Can "reduction" mean "elimination?" If it does not, then how can a trial judge "reduce" maintenance if the parties, in their settlement agreement, have failed to establish guidelines for such a "reduction?" Is a "reduction" in maintenance, permitted by an eight-year-old agreement, subject to the maintenance guidelines currently applicable to maintenance awards? The resolution of these recurring questions sends this Court sprinting to the dictionary and the Domestic Relations Law for answers.
Relying on the Property Settlement and Separation Agreement executed eight years ago, the now retired Defendant-former husband-seeks modification of his spousal maintenance obligation to his former wife. He argues a reduction is justified by the express terms of their agreement and further, that in the absence of terms which set a minimum amount or floor for the recalculated maintenance, the husband's current financial circumstances justify eliminating the maintenance altogether. The wife, arguing that she is dependent on the continuance of maintenance, disagrees and that difference brings this dispute before the Court.
In 2009, the parties entered into a Property Settlement and Separation Agreement ("Agreement"), which was incorporated, but not merged, into Judgment of Divorce. The Agreement required the husband to pay maintenance to his spouse. Article VI, Section C of the Agreement allowed for the termination of spousal maintenance under certain specifically enumerated/delineated events . Section E of the Agreement states that the Defendant "shall have the right to apply for a reduction in his maintenance obligation," when and if the "Defendant attains the age of sixty-six (66) and has a net income from his dentistry practice of less than $165,000.00 per year as reported on his income taxes." The Agreement is silent on how the "reduction" will be calculated, sets no minimum amount payable for maintenance after the "reduction", includes no terms terminating maintenance, and institutes no durational limitations on maintenance after the reduction is implemented. Despite the lack of express terms, the husband argues that the "reduction" language renders maintenance durational and subject not just to reduction but to termination upon his retirement. In seeking this relief, defendant asks too much of the sparse terms of this agreement
The "termination" events in the agreement included death of either party, Plaintiff's cohabitation with an unrelated male, or Plaintiff's remarriage.
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The terms of a separation agreement incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. Bokor v. Markel, 104 AD3d 683, 683 (2d Dept.2013) citing In re Gravlin v. Ruppert, 98 N.Y.2d 1, 5 (2002). " ‘A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning.’ " Bokor, 104 AD3d 683 (citing In re Tillim v. Fuks, 221 A.D.2d 642, 643 (2nd Dept.1995) ; Makarchuk v. Makarchuk, 59 AD3d 1094, 1094 (4th Dept .2009) (agreement cannot be modified absent a clear expression by the parties of such an intent). This Agreement allows for the termination of maintenance under certain specifically enumerated/delineated events in a separate paragraph: Defendant's retirement is not among them. In a second paragraph, the Agreement details specific age and income conditions which trigger Defendant's right to apply for a reduction in his maintenance obligation. These sections, read together, allow the Defendant to seek a "reduction" in maintenance but, the language does not require this Court to terminate it and the Defendant cannot point to any language suggesting the parties so intended. The court cannot look beyond the four corners of the Agreement to determine the parties' intent. Meccico v. Meccico, 76 N.Y.2d 822, 824 (1990). If the parties intended that Defendant's retirement constituted an event terminating maintenance or imposed some durational limitations, the Agreement would have said so.
Because maintenance is not terminated, this Court must determine the amount to which Defendant's maintenance obligation should be reduced. In the agreement, the parties abandoned the statutory requirement-"extreme hardship"-for modification of maintenance. DRL § 236(B)(9)(b). Sayers v. Sayers, 129 AD3d 1519, 1520 (4th Dept.2015) (parties to a separation agreement may provide for a modification of support based on a lesser standard than what is legally required). In this instance, the couple agreed that a "reduction" is justified if the Defendant attained the age of sixty-six (66) and has a net income from his dentistry practice of less than $165,000.00 per year as reported on his income taxes. Neither fact is disputed by the wife.
In evaluating the amount of a reduction, this Court notes that the Agreement makes no reference to the criteria to guide this Court. There is no mention of the statutory standards for an award of maintenance or the recently enacted temporary or permanent maintenance guidelines, which were enacted well after the agreement was signed in 2009. See DRL § 236(B)(5–a) & DRL § 236(B)(6). Instead, this couple chose an amorphous standard to arrive at an appropriate reduction: "all the circumstances existing at that time" when the reduction is decreed. "The circumstances" present in this case demonstrate that the husband, the payor, had a net income from his dentistry practice that declined from an excess of $165,000 to only $33,408 in 2015, a reduction of more than 75 percent. The Agreement, in reciting the basis for a recalculation, makes no reference to other income available to the husband to pay future maintenance. The husband, in his application to this Court, only attached his Schedule C from his 2015 income tax return, which, while demonstrating the reduction in his income from his dental practice, does not vouch for his total gross income in 2015 or 2016 or adjustable gross income in either year. The husband's total income, which would be available from the first page of his 1040 form from the Internal Revenue Service, would be a factor to be considered in evaluating the "circumstances" in recalculating maintenance. In addition, in his application to this Court, the husband seems to suggest that his retirement accounts and social security are the only sources available for calculation of his wife's maintenance and, he argues, invading those resources to pay maintenance would be a form of "double-dipping" as those asserts were part of the husband's equitable share of marital assets distributed during the divorce.
In contrast, the former wife argues that the maintenance payments from the husband are her only source of income, other than social security benefits that she receives through her husband. The social security benefit, according to the wife's statement from the Social Security Administration, is only $658 per month. Her social security statements shows that she made no income from 2011 through 2015 and never made more than $26,463 during her married life.
Based on these facts, this Court cannot, in advance of a hearing, determine what maintenance should be paid by the husband. The "circumstances" could include the supporting spouse's reduced income, other current earnings and the supported spouse's needs and independent means for meeting them. In re Buchner v. Buchner, 79 A.D.2d 656, (2nd Dept.1980). In addition, the husband alleges, as another "circumstance," that he voluntarily continued to pay the agreed maintenance until age 70, even though he could have sought the recalculation at age 66. However, it is unclear whether a sufficient reduction in his dental practice income occurred during that four-year period and whether that reduced income would have permitted a reduction under the terms of the agreement.
The husband's application to recalculate maintenance is granted to the extent of suspending his maintenance obligation under the agreement until the further order of this Court. The Court declines to make an interim award of maintenance at this stage because there are insufficient facts from which to deduce any reasonable award for the future under the contractual language requiring the Court to consider "all the circumstances" and furthermore, the Court cannot determine whether the temporary or permanent guidelines under the Domestic Relations Law should be utilized to make the recalculation. The wife has not cross moved for any relief, but makes a claim for attorneys fees in defending her access to maintenance. The wife is clearly the lesser moneyed spouse before the Court. Jeng v. Barrow–Jeng, 55 Misc.3d 281 (Sup.Ct. Monroe Cty.2016, Dollinger, J.). While an award of attorneys fees would appear to be justified, the Court declines to make such an award as the wife did not cross-move for that relief. Finally, the wife seeks confirmation that the insurance provisions in the agreement have been implemented and continue to be in full force and effect. The wife failed to cross move for that relief and the request is denied without prejudice.
The Court will hold a hearing in the near future, to determine the amount of maintenance going forward and resolve all other disputed issues.