M.M. v T.M.

[*1] M.M. v T.M. 2012 NY Slip Op 50962(U) Decided on April 23, 2012 Supreme Court, Monroe County Dollinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 23, 2012
Supreme Court, Monroe County

M.M., Plaintiff,

against

T.M., Defendant.



03-11013



Francis C. Affronti, Esq.

130 D Linden Oaks

Rochester, New York 14625

Attorney for Plaintiff

Warren Welch, Esq.

150 Linden Oaks, Suite E

Rochester, New York 14625

Attorney for Defendant

Richard A. Dollinger, J.

INTRODUCTION

The parties before the court were married for 34 years. When divorced in 2005, they entered into an oral stipulation, and subsequently signed an agreement in December 2005. The parties have stipulated that the maintenance provision in the separation agreement merged into the divorce decree. The maintenance is set at $41,600 annually. The agreement—and subsequent judgment — provided that when the husband's various pensions went into pay status, the amounts paid out to the wife from those pensions would reduce the maintenance payments. The agreement's maintenance article also contained a life insurance provision, which is also an issue now before the court.

The husband admits that he failed to make his monthly maintenance payments from November 2006 through December 2010. In November 2008, the wife commenced, by order to show cause, a proceeding to collect unpaid maintenance and enforce the life insurance provision of the agreement. She alleged civil contempt because of the failure to pay maintenance and to put in place what she alleges is required life insurance coverage. She also sought prejudgment interest on the missed maintenance payments and attorneys fees. At the return date of the motion, the husband appeared without [*2]counsel. Thereafter, he eventually moved for relief from his maintenance obligations by filing a cross-motion with the court on January 14, 2009. He did not resume paying maintenance until December 2010, when, as a result of his finding new employment, and the imposition of an income execution, he began to pay again. In the cross-motion and the arguments now before the court, the husband argues that he lost his high-paying employment in 2006 and as a result, was unable to pay the maintenance and therefore, should not be held in contempt. In the alternative, he asks for a downward modification of the maintenance during his period of unemployment. Further, based on his new income from employment secured in March 2010, he seeks a maintenance modification to less than what he committed to pay in the agreement and divorce judgment.

A previous judge issued a decision on the wife's order to show cause, dated February 24, 2009, awarding the wife arrears for December 2006 through November 2008,[FN1] and reserved decision on arrears due for December 2008, and January 2009. (McElduff v. McElduff, Sup Ct, Monroe County, Feb. 24, 2009, Lindley, J., at 6, n.1). The court noted that "the issue of what, if any, arrears should be deemed to have accrued after defendant appeared pro se in this matter in response to the initial order to show cause are reserved for future decision." Id.

THE MAINTENANCE PAYMENTS FOR DECEMBER 2008 AND JANUARY 2009

The husband does not dispute that the maintenance for this time was never paid. However, he asks this court to find that his cross-motion is effective, regarding any modification, back to the date of the filing of the wife's order to show cause in November 2008 or, in the alternative, from the day of the argument at special term in December 2008 because he raised the issue during oral argument. The court has reviewed the transcript of the December 2008 motion argument. The trial court granted the husband an adjournment to obtain counsel, but there is no evidence that the husband asked for a modification during this session, and he never submitted any written statements in support of the application until January 15, 2009.

The longstanding rule in New York is that modification can only be retroactive to the date of the filing of the request for modification. DRL § 236 (B)(9)(b); Yunis v. Yunis, 94 NY2d 787, 788 (1999) (date of application governs under DRL § 236 (B)(6)(a)); Ropiecki v Ropiecki, 941 NY2d 650 (2nd Dept. 2012); Malcolm v Malcolm, 2012 NY Slip Op 30561 (Sup. Ct. Albany Cty. 2012) (court can only award maintenance retroactive to the date when the Notice of Motion was filed); S.B. v. G.B., 33 Misc 3d 1212A (Sup. Ct. New York Cty. 2011). The date of the filing of the cross-motion is the earliest date that any relief can be granted to the husband. He has failed to show good cause for an order making any downward modification granted retroactive to a date earlier than the date that filing. Jancu [*3]v. Jancu, 224 AD2d 229 (1st Dept. 1996) (retroactive to the date of the cross-motion); Papaioannou v. Tsopelas, 260 AD2d 282 (1st Dept. 1999). If this court decides a modification in the maintenance is appropriate, the date from which such a modification is calculated is January 15, 2009.

In this court's view, the husband's pro se appearance does not "stop the clock" on his maintenance obligations, even if he made an application during the oral argument for the order to show cause. As Judge Lindley indicated, the husband is "an intelligent and sophisticated businessman with a background in banking." He appeared before Justice Lindley without counsel and made no cogent argument for relief from his maintenance obligations. By not submitting any sworn statements during that appearance, he deprived his wife and her counsel of an effective rebuttal of his claims at the oral argument. In addition, Justice Lindley, in his written decision after the husband had filed the cross-motion, dismissed the adequacy of the husband's defenses to the claim for arrears in maintenance:

His primary defense is that he could not afford to pay maintenance because he lost his job in March 2006 through no fault of his own. He also alleges that he paid substantial sums to put his youngest son through college, and he takes issue with the initial maintenance determination. None of these defenses constitutes a basis to reduce or eliminate maintenance arrears.

In addition, as Judge Lindley noted in 2009, there was not "even the barest showing of good cause for failing to move sooner." The court agrees with this assessment, and there was no proof at the hearing to justify any different conclusion.

The wife is entitled to a judgment for the maintenance for the months of December 2008 and January 2009. The court finds that the modification petition was filed on January 14, 2009, and therefore, the amount awarded will be a full month's maintenance for December 2008, and half a months' maintenance for January 2009.

A FINDING OF WILLFULNESS FOR PREJUDGMENT INTEREST ON THE

MISSED MAINTENANCE PAYMENTS

The wife also asks for pre-judgment interest on the unpaid maintenance, both on the amount awarded by Judge Lindley, and the amount awarded by this decision. Under Section 244 of the Domestic Relations Law, this court can award pre-judgment interest if the default was wilful and the husband "knowingly, consciously and voluntarily disregarded the obligation."[FN2]

Before proceeding, this court is struck by the paucity of case law defining "willful" under DRL §244. The statute seems to define "willful" as a "knowing, conscious and voluntary" failure to comply with a court's directive. See Rainey v Rainey, 83 AD3d 1477 [*4](4th Dept. 2011) (if willful, then prejudgment interest is mandated); Goldkrantz v. Goldkrantz, 82 AD3d 699 (2nd Dept. 2011) (upon finding of willful conduct, prejudgment interest on unpaid fees was required); Vincinanzo v. Vincinanzo, 233 AD2d 715 (3rd Dept. 1996) (payor's "clear disregard of his legal responsibility" and the applicant's "foregoing the use of money that was rightfully hers for a protracted period of time" as a factor in finding willfulness); Lewis v. Weiner, 191 AD2d 172 (1st Dept. 1993) (hostility toward the plaintiff is certainly not an excuse for willful failure to meet obligations). This seemingly amorphous definition of "willful" under the Domestic Relations Law is mirrored elsewhere in case law and statutes. See American Transit Ins. Co. v. Corcoran, 76 NY2d 977, 980 (1990) (the term "willful" is not defined . . . , but we find some guidance as to its unremarkable meaning in a civil regulatory context as "no more than intentional and deliberate"); Levin v. Gallman, 42 NY2d 32 , 33 (1977) (defining "willful" under federal law as an act consciously, and voluntarily done and no showing of intent, but only something more than accidental nonpayment is required); Matter of Mallozzi-Petrizzo v. Kelly, 2012 NY Slip Op 30458U (Sup. Ct. New York Cty. 2012) (while not defined in the Administrative Code, "willful negligence" is construed as consciously disregarding the consequences of actions); Mueller v Elderwood Health Care at Oakwood, 31 Misc 3d 1210A (Sup. Ct. Erie Cty. 2011) (an act or omission is "willfully" done if done voluntarily, intentionally, and with the specific intent to do something the law forbids or with a specific intent to fail to do something the law requires to be done); Harkin v WDF, Inc., 30 Misc 3d 1219A (Sup. Ct. New York Cty. 2011) (willful has been defined as "[s]aid or done on purpose; deliberate" citing American Heritage Dictionary 1968 [4th ed. 2006]); Coco Invs., LLC v Zamir Mgr. Riv. Terrace, LLC, 26 Misc 3d 1231A (Sup. Ct. New York Cty. 2010) ("willful conduct has been defined as a conscious indifference' or I don't care attitude' which is the prerequisite of wanton behavior"); Daggart of Richmond Inc. v. M & D Firedoor, 24 Misc 3d 1227A , p. 10 (Sup. Ct. Richmond Cty. 2009) (the courts have defined willful as meaning "intentional and deliberate"); Congregation Yetev Lev D'Satmar, Inc. v. Nachman Brach, 2008 NY Slip Op 51825U (Sup. Ct. Kings Cty. 2008) ("willful" is defined as "voluntary and intentional" (Black's Law Dictionary 1593 [7th ed 1999]).

Regardless of the precise definition, there can be no doubt that the husband's failure to pay maintenance in this case was "wilful" from the time of November 2006 through January 14, 2009, when he filed his cross-motion to modify the maintenance. It is undisputed that he knew he had an obligation—under the agreement and judgment—to pay maintenance during this time. He consciously disregarded this obligation. There is no evidence that he contacted his wife regarding his loss of employment or attempted to directly negotiate a reduction in his maintenance during this time. There is no evidence of any communication with any other party—an attorney, a financial advisor, his children—regarding his lack of ability to pay the maintenance. He made no effort to make partial payments. In addition, there is abundant evidence that he had access to funds during this period of time. The husband admitted that he sold stocks, cashed in money from retirement accounts, maintained a household, owned a condominium in New Jersey through a solely-owned limited liability company, paid substantial real estate taxes (on a property he did not own which benefitted his second family), had access to a promissory note in which the debtor owed him $100,000, and paid his son's $30,000 college tuition. [*5]In all of these instances, he found money to pay for housing, life expenses, and other expenditures, but he never even made a partial payment on his maintenance obligation. Based on these facts, well-documented in the record, the wife has proven by clear and convincing evidence that the husband's failure to pay maintenance from November 2006 through January 14, 2009, was wilful under DRL §244, and she is entitled to prejudgment interest on those payments.

Once he cross-moved to modify his maintenance obligation, the husband's conduct cannot be considered wilful. At the time of his application, he was unemployed, had attempted to find employment, and his income had suffered a reduction. Under these circumstances, and because of his court-application, the husband's conduct in failing to pay maintenance, commencing on January 14, 2009, cannot be considered wilful because he had a reasonable belief, articulated in cross-moving papers, that he was entitled to a reduction. (In fact, the husband asks that his maintenance obligation be eliminated entirely.) The court finds that his lack of maintenance payments, commencing in January 2009, was not willful.

The wife argues that the husband's "wilfulness" was again present when he obtained new employment at a salary that she alleges was roughly comparable with his salary at the time of the divorce. The evidence before this court establishes that the husband returned to work in March 2010, but did not inform his wife that he had secured new employment. She only found out about it shortly before issuing an income execution in December 2010. Despite his apparent deceit in failing to report his new income, this court declines to find that his failure to pay maintenance during this time (from March 2010 through December 2010) was a "wilful" violation of his obligations. The husband still had a valid prima facie application to modify his maintenance pending before this court at the time, and although his new source of income made it unlikely that he would be relieved completely of his maintenance obligations, nonetheless, he had some justifiable basis for failing to make these payments. In addition, the wife cannot direct the court to any requirement in the separation agreement or judgment of divorce that required the husband to report his employment to her. For these reasons, the court concludes that the missed payments from January 2009 through December 2010, are not wilful, and therefore, prejudgment interest is not awarded on these payments under DRL §244.

THE HUSBAND'S FAILURE TO PROVIDE FOR LIFE INSURANCE

The judgment of divorce and the agreement contain identical language regarding the provision of life insurance:

In the event the Husband predeceases the Wife, the Husband shall make provisions for the Wife to receive either from life insurance on his life and/or from his estate a sufficient sum of money to make up any shortfall from the amount of $800 per week maintenance, pursuant to Article VI of this agreement, that the wife has from monies received by her from the Husband's pension plans pursuant to Article III, J, 4, 5, and 76 of this agreement and social security payments that she is entitled to receive at that time.

The facts established at the hearing indicate the husband has no life insurance for the benefit of the wife, and has made no provisions for her under any testamentary documents. He testified that he does have $266,000 in term life insurance through his employer, but [*6]the wife is not a beneficiary under any policy. The wife interprets the agreement as requiring her designation as a beneficiary to the extent required to make up any shortfall in the maintenance payments. She argues that the husband's failure to comply with this portion of the agreement is wilful and contemptuous. NY JUD §753; see also Couture v. Garland, 105 AD2d 1158 (4th Dept. 1984) (imprisonment and fines are penalties for civil contempt under the Judiciary Law). The husband argues that the provision is unenforceable because by its terms the language has no effect unless the husband predeceases the wife, and, that even if the language created an enforceable obligation, the benefits paid to the wife under the pension benefits and social security will exceed her anticipated maintenance benefits.

A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court. Solomons v Douglas Elliman LLC, 2011 NY Slip Op 33471U (Sup. Ct. New York Cty. 2011), citing Schwartz v Schwartz, 79 AD3d 1006, 1009 (2nd Dept. 2010). To prevail on a motion to punish for civil contempt, the wife must establish, by clear and convincing evidence:

(1)that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect;

(2)that the order was disobeyed and the party disobeying the order had knowledge of its terms, and

(3)that the moving party was prejudiced by the offending conduct.

Bernard-Cadet v Gobin, 2012 NY Slip Op 3124 (2nd Dept. 2012); Quinche v Gonzalez, 2012 NY Slip Op 3158 (2nd Dept. 2012) (to prevail on a motion to punish a party for civil contempt, the movant must demonstrate by clear and convincing evidence that the party charged violated a clear and unequivocal court order, thereby prejudicing a right of another party to the litigation). See also Katz v Katz, 73 AD3d 1134, 1134 (2nd Dept. 2010) (the movant must establish that the alleged violation was willful). See NY JUD § 753 (A) (3).

In this case, the second prong of the test is undisputed: the husband clearly knew of the life insurance clause in the agreement. The parties had negotiated this term into the agreement and the judgment of divorce. There is no evidence that the husband has made any effort to change the beneficiaries or work with an insurance company to structure the insurance coverage to comply with this obligation. There is no evidence that he discussed changes to this poorly drafted clause with his wife or her counsel. He never asked this court for relief from the clause or brought any action seeking a construction of this provision. In short, he ignored the clause, apparently reading it as unenforceable. Under any definition of "willful," his failures in this regard meets that test.

The first aspect of the contempt test requires analysis because the husband suggests that the language is ambiguous, in that it is without any force and effect unless and until the wife predeceases him. The determination of the meaning of the clause requires this court to resort to well-established contract principles. When interpreting a separation agreement, the court should arrive at a construction that will 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. Fragin v Fragin, 80 AD3d 725 (2nd Dept. 2011); Herzfeld v Herzfeld, 50 AD3d 851 (2nd Dept. 2008); [*7]Fetner v Fetner, 293 AD2d 645 (2nd Dept. 2002). In this case, the court declines to read the prefatory phrase "in the event that the husband predeceases the wife" as a condition precedent to the husband's obligation to obtain the required insurance coverage. This condition precedent is a condition to the requirement to pay over the insurance coverage to the wife. The rationale for the court's interpretation is simple: if the husband outlives the wife, then the entire life insurance clause is meaningless. The agreement and the judgment of divorce provide that maintenance terminates upon the wife's death. Therefore, the phrase "in the event that the husband predeceases the wife" does not set up a condition precedent to the husband's obligation. This court reads this clause as a declaration of the circumstances in which the life insurance payments must be paid to the wife: the obligation only arises when the husband predeceases the wife.

The husband also argues the language is unenforceable because the referenced "shortfall" will never actually occur. He testified that "there is zero likelihood that there's any shortfall upon my death." The husband argues that the pension benefits, when added to the wife's anticipated social security, will exceed $800 per week. The agreement and decree's reliance on the term "shortfall" does not minimize the husband's obligation. The "shortfall" is a calculation made at the time the husband has died and the wife's vested pension benefits and any social security benefits are tallied. If those benefits combined are less than $800 per week, then the insurance policy makes up that shortfall. Presumably, the parties intended that the shortfall in monthly payments would be calculated after the husband's death and some amount of insurance coverage would be paid to the wife to make up the shortfall. Someday, it may turn out that the husband's analysis may be correct: the payments from the pension and social security may eclipse the $800 per week maintenance, but this future happening does not void his obligation to provide insurance to cover a possible shortfall. The husband is required to provide insurance coverage, but he can specify that no payments would be made under the insurance if the effect of the payments, when combined with the pension and social security, exceeded $800 per week in benefits to the wife. As the husband suggests, it is entirely possible that no insurance payments will ever be paid to the wife; she may die first, and she may get more benefits from the pensions and social security than her maintenance. However, neither of these potential future consequences defeats her right to insist on the benefit of her bargain: her right to have the husband provide life insurance benefits, that when combined with her pension and social security, will at least equal $800 per week.

The life insurance provision is enforceable, but that does not, by itself, justify the conclusion that the husband should be held in contempt for violation of the clause. The language of the clause, agreed to by both husband and wife, has an inartfully drafted prefatory clause that mitigates against a finding that the insurance requirement was a "clear and unequivocal mandate." In this court's judgment, the parties share responsibility for this inartful language and, although the court finds the sentence as interpreted to require the husband to provide the insurance coverage, nonetheless the language, by itself, fails to meet the "clear and unequivocal mandate" sufficient to justify a finding of contempt.

Although the court finds the husband has violated his obligations under the clause, there is no evidence, at this stage, of a prejudice to the wife. The husband is still alive, the [*8]husband can change the insurance requirements to provide the required benefits. The wife has lost nothing, and hence, despite his violation of the obligation, she has sustained no prejudice. Therefore, this court finds that the wife has failed to prove by clear and convincing evidence that the husband, by failing to comply with his contractual obligations under the life insurance clause, is guilty of contempt. The court still orders the husband to procure the insurance coverage required by the agreement within ten (10) days of a order incorporating this decision. The husband testified that he already had more than enough term insurance to cover the possible payments after his death. There is no evidence that compliance with this provision will cost the husband a nickel. In addition, if his predictions are right, the insurance benefit will never be actually paid over to his wife and, presumably could be paid to other contingent beneficiaries. The agreement requires him to provide the insurance coverage sufficient to make up any shortfall, and if he fails to comply with the court's direction within ten (10) days of this order, the wife may renew her action for contempt.

THE HUSBAND'S APPLICATION TO MODIFY MAINTENANCE

In considering the husband's application to modify his maintenance, there are two aspects to the request: the period from January 2009 (after he filed the cross-motion) through March 2010 (when he began employment again), and the period from March, 2010 to date.

1.Modification in January 2009.

Any modification of a maintenance obligation merged into a divorce decree requires the husband to prove a substantial change in circumstances. DRL §236 (B)(9)(b)(1); LiGreci v LiGreci, 87 AD3d 722 (2nd Dept. 2011) (where a party seeks to modify a maintenance obligation set forth in a judgment of divorce, that party must show a substantial change in circumstances warranting such a modification). A substantial change includes financial hardship. Id. When determining if there is a substantial change in circumstances to justify a downward modification of a maintenance obligation, the change is measured by comparing the payor's financial circumstances at the time of the motion for downward modification and at the time of the divorce (or the time when the order sought to be modified was made).

In this case, the proof regarding the husband's change in circumstances hinges exclusively on his stated income. The husband testified that he lost his job in April 2006, but there is no evidence regarding the reasons for his loss of employment. Baffi v. Baffi, 24 AD3d 578 (2nd Dept. 2005) (loss of employment can constitute a change of circumstances warranting a downward modification of support obligations where a parent

has diligently sought re-employment commensurate with his or her qualifications and experience).

According to his income tax returns, the husband's income plummeted from $214,160 in 2005, to $74,751 in 2006, and then to $3,311 in 2007. He testified that he did not file a return in 2008 because he made less than the $7,700 minimum to file. What is intriguing is the lack of evidence that his lifestyle changed while his income shrunk to almost nothing. In fact, the evidence establishes that he continued to live in a house, with another family, without paying rent. Baffi v. Baffi at 579 (value of the rent-free home [*9]provided for a party seeking modification can be the basis for imputed income). He apparently had a house in New Jersey (currently owned by his friend, but was owned by his sole-owned limited liability company previously), and he took a $36,371 distribution from his IRA to finance his son's education in 2006, even though the agreement did not require him to do so. There is no evidence that he liquidated any personal assets (cars, jewelry, etc.) other than the estimated more than $30,000 in bank shares that he sold between 2007 and 2009. He had access to an investment account, in the name of his solely-owned LLC, which paid some personal expenses, including health insurance. In short, while his income fell and he claims that he was "broke," his lifestyle did not substantially change in the period from January 2009 to March 2010 (when he secured new employment). There is no evidence that he did anything other than continue to live in his house, pay his taxes, finance his son's education (at substantial expense), sell some investments, pay other daily living expenses, and live the same lifestyle as before his divorce was final and he was still employed.

There is no evidence of the reasons why the husband lost his employment in 2006. In order to consider any application for downward modification, a party must offer evidentiary support for his assertion that this decrease in earnings was not of his own making. Virginia S. v. Thomas S., 58 AD3d 441 (1st Dept. 2009). He simply testified that "they said we don't have any more [work] ... the mission ended. I completed it." However, there's no corroboration for these statements and no evidence of any "end of mission" letters or any other documentary evidence.

Furthermore, this court has previously required extensive evidence of a diligent job search in order to justify a reduction in support. Szalapski v Schwartz, 2011 NY Slip Op 52510U (Sup. Ct. Monroe Cty. 2011). See also Cristina M. v. Kevin S. M., 91 AD3d 437 (1st Dept. 2012) (party seeking modification must diligently seek to obtain employment commensurate with his earning capacity). In other cases, courts have denied modification requests in the absence of documentation about the applicant's efforts to obtain employment, such as a resume, job applications, or a job search diary. Matter of Virginia S. v. Thomas S. at 443.

The husband's uncorroborated job search statements are insufficient to meet this test. While he describes his efforts as "extreme," and including "30 to 40 applications a month" in a "desperate" effort to find work, the husband produced no application letters, no copies of his resume, and no rejection letters. While he testified that he answered ads and other invitations and traveled to interviews, there were no dates associated with these interviews, no travel receipts - no corroboration. When asked which jobs he had applied for in the Rochester area, he could not recall even one with any specificity. The husband did describe personal interviews with banking entities in St. Louis, Los Angeles, North Carolina, and Florida. He described applying with other companies that managed troubled banks, several banks in Detroit, the south, and he applied with "many parts of the federal government." But, in all of these instances, there were no dates established as to when these interviews occurred, no evidence of travel or lodging, or any correspondence or emails confirming the interview. The husband testified that he paid for his own travel to more than 20 interviews during this four-year period, but there was no evidence of any travel expenses or receipts for the travel.

Based solely on the husband's testimony, and without any corroborating [*10]documentary proof of the effort, this court cannot conclude that husband conducted a diligent search for employment. He was, by his own admission, unemployed for more than four years. He testified that he kept records of his job search with the New York State Unemployment Insurance Department, but these records were not offered at trial. There is also no evidence that his search was consistent: he never established when the interviews occurred during the four-year unemployment interval. A diligent search would have required the husband to continually seek employment, and there is no evidence that he did so throughout the four-year period.

For these reasons, his request to modify his maintenance from the period from January 2009 (when his application to modify was filed) through March 2010 is denied.

2.Modification after March 2010.

The request for a modification based on the husband's new income from his employment at the FDIC demands further attention. The evidence at trial establishes that at the time of the divorce, in 2005, the husband was earning approximately $130,000 annually. His income at the FDIC for 2011 is a roughly comparable number. The evidence shows that he had earned approximately $116,000 through October 6, 2011, and that he would receive more than $25,000 in additional income through the remainder of the year. Thus, for all intents and purposes, his total income in 2011, the last full year of employment, is roughly comparable to the income at the time of the divorce.

The husband also acknowledged that his expenses have substantially shrunk since 2005. As sworn to in his statements of net worth, they declined from more than $11,000 per month in 2005 to less than $4,200 in 2011. He now shares a household with his second family. There is no evidence he is paying any rent or a mortgage on his residence in Rochester. He lives in a New Jersey home now owned by his friend, but previously owned by his solely-owned limited liability company. He has no further college education expenses. Thus, while the husband's income, cast in a light most favorable to him, may be slightly less than it was at the time of the divorce in 2005, he certainly gets more mileage out of it in 2011 because of the substantial decrease in expenses.

In contrast, the wife's standard of living in 2011 is little changed from 2005. She is 63, works 32 hours a week, for $11 an hour, and earned $18,398 in 2010. There is no proof that she is underemployed or capable of generating additional income. She has multiple sclerosis, and pays $205 per month for health insurance. She lives in a house valued at $205,000. Her only other source of income apart from her employment is the maintenance at $1,338.02 per month, and her share of the pension payments. These pension benefits, when combined with the maintenance payments, total $41,600 for the year - the amount that was the agreed maintenance in the agreement and decree.

Therefore, while the husband now has an income roughly comparable to his 2005 income, his actual out-of-pocket cost for maintenance is less than $16,500 a year, as compared to the out-of-pocket cost of $41,600 in 2005 at the time of the divorce. If the reduced outlay for maintenance is combined with his substantial reduction in expenses, the husband's has had (especially from his wife's perspective), a substantial improvement in his financial circumstances rather than a change for the worse.

When the court applies the substantial change in circumstances test to the husband and compare his circumstances in 2005, at the time of the divorce, to 2011, when this trial [*11]occurred, the court cannot find a substantial adverse change in circumstances to the husband as the law requires. His request to modify his maintenance obligations for this period is denied.

ATTORNEYS' FEES FOR THE WIFE

The wife's attorney is entitled to an award of attorneys fees, pursuant to the terms of the agreement as well as Sections 237 and 238 of the Domestic Relations Law. The agreement requires them to be paid by the husband upon a finding that he is in default or if he misses more than three payments of maintenance. It also states that he is responsible for counsel fees incurred "with pursuing any enforcement proceeding."

A litany of poor decisions by the husband justifies attorney fees in this case. The husband was in default, missing more than three payments. His failure to pay was, for at least two and one-half years, willful as matter of law. His recalcitrance to confront his obligations is the reason for this extended enforcement proceeding. Despite his plea of poverty, there is ample uncontroverted evidence in the records that the husband had resources available to pay maintenance to his wife throughout the period from November 2006 through December 2010. During the time when he was not paying his maintenance obligation, he sold various stocks and generated more than $28,000 in income which went to him directly. A limited liability company, of which he was the sole owner, sold bank stocks valued at more than $30,000 during the same time frame. His limited liability company was owed $100,000 by another debtor, and instead of collecting these sums and paying his wife, he used a house owned by the debtor and did not pay rent. (The rent-free house offset the debt owed to the husband's limited liability company.) He also withdrew more than $7,000 from his contributory Individual Retirement Account (IRA) during this time.

Two other factors re-enforce the court's conclusion that fees are justified. First, it is undisputed that the husband could have put his Citibank pension account into pay status, which would have paid part of his maintenance obligation and reduced his arrears, without costing him anything. In fact, when the pension went into pay status, he would have been paid his share of it and would have submarined his claims of poverty. Nonetheless, he declined to put his pension into pay status, a fact which suggests his motivation was simply to further harm his wife's financial condition. Second, even after the husband was re-employed, he failed to notify his wife, and only began making any payments to her when an income execution went into effect in December 2010.

The husband's pattern of behavior during his period of unemployment and up to December 2010—declining to inform his wife that he had been re-employed, selling stocks for income, taking IRA distributions, using his limited liability company to obtain income, failing to put his pension into pay status, taking payments on a debt in the form of rent-free housing — signals his true motivation. He intended throughout to avoid paying any maintenance to his wife. Under these circumstances, he can hardly suggest that his wife's long and expensive efforts to recover her maintenance justifies her having to pay her attorneys fees.

The wife is entitled to attorney fees under the agreement. The court does not need to look to DRL §237, which requires a wilful violation of the judgment of divorce to justify fees. But even if it did, it would find an award of attorneys fees required by the statute as [*12]well. The wife's counsel may submit an affidavit regarding the fees expended in this matter and the court will hold a hearing if necessary to resolve this portion of the claim. The attorney fee affidavit must be submitted within ten (10) days after the entry and service of an order based on this opinion.

CONCLUSION

The following relief is granted:

(A)the wife's motion to hold the husband in contempt for failure to comply with the insurance coverage provision of the agreement is denied;

(B)the insurance provision in the agreement and decree is interpreted to require the husband to provide the insurance coverage within ten (10) days after the entry and service of this order;

(C)the wife's request for a commitment order is denied, without prejudice to renewal in the event that the husband fails to comply with the terms of this order;

(D)the wife's request for maintenance arrears for December 2008, and January 2009, is granted to the extent of a judgment in the amount of maintenance required for the entire month of December and half of the month of January 2009;

(E)the wife's request for prejudgment interest is granted for all unpaid maintenance for each month from April 2006 through January 14, 2009, and denied for all other unpaid monthly maintenance payments thereafter;

(F)the wife's motion for attorneys fees under the agreement and DRL §237 is granted and counsel will submit an affidavit of fees within ten (10) days of the entry and service of an order incorporating this decision, and

(G)the husband's motion for modification of his maintenance is denied in its entirety.

This decision should be submitted as an order on notice to all parties.

Dated:May 23, 2012___________________________________

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:The court held that the amount owed was $74,598 for the period from December 2006 through November 2008, but the judgment issued by the court was for a higher amount, reflecting that the unpaid balance as of November 2008 was $76,331.33. Thus, the actual judgment included maintenance arrears up to December 1, 2008.

Footnote 2:The demand for pre-judgment interest was made in the original motion papers and the prior court reserved "pending a hearing on the contempt application." Therefore, the issue is properly before the court.