Odermatt v Odermatt
Annotate this CaseDecided on June 26, 2012
Supreme Court, Queens County
Elaina Odermatt, Plaintiff,
against
Robert Odermatt, Defendant.
19131/2006
Christopher T. Owen, Esq.
Attorney for Plaintiff
200 Madison Avenue
New York, New York 10016
F: 212-213-3318Robert Litwack, Esq.
Attorney for Defendant
118-35 Queens Boulevard, 15th Floor
Forest Hills, New York 11375
F: (718) 544-5703
Pam B. Jackman-Brown, J.
Recitation as required by CPLR 2219(a), of the papers considered in review of Plaintiff's motion for an order (1) awarding a money judgment for counsel fees pursuant to JHO Gartenstein's decision, dated October 14, 2010, (2) enforcing the terms of the stipulation of settlement, dated August 6, 2010, with regard to transfer of title in the automobile, payment of tuition and school expenses, child support, medical insurance for the unemancipated child of the marriage, and re-filing tax returns; and (3) granting such other and further relief as may be just and proper; and Defendant's cross motion for (1) leave to renew and reargue the issue of counsel fees, costs and disbursements, and (2) such other and further relief as this Court deems just, proper and equitable.
PapersNumbered
Notice of Motion, Affirmation and Affidavit annexed.............................................1 - 3
Exhibits Annexed to Notice of Motion.....................................................................4A - 4G
[*2]
Opposition to Notice of Motion................................................................................5 - 6
Exhibits Annexed to Opposition...............................................................................7A -7 M
Reply.........................................................................................................................8
Exhibits Annexed to Reply.......................................................................................9A - 9C
Upon the foregoing cited papers, the Decision/Order on the order to show cause and cross motion is as follows:
Plaintiff brings this motion for an order (1) awarding a money judgment for counsel fees pursuant to JHO Gartenstein's decision, dated October 14, 2010, (2) enforcing the terms of the stipulation of settlement, dated August 6, 2010, with regard to transfer of title in the automobile, payment of tuition and school expenses, child support, medical insurance for the unemancipated child of the marriage, and re-filing tax returns; and (3) granting such other and further relief as may be just and proper. Defendant cross moves for (1) leave to renew and reargue the issue of counsel fees, costs and disbursements, and (2) such other and further relief as this Court deems just, proper and equitable.
The parties entered into two Stipulations, dated November 3, 2011 and February 13, 2012, resolving the branches of the motion to enforce the terms of the stipulation with regard to transfer of title in the automobile, payment of tuition for 2010, medical insurance for the unemancipated child of the marriage, and re-filing tax returns. The parties further agreed to recalculate the 2010 child support payments pursuant to the CSSA and based on the income reported in Defendant's 2010 tax return.
Remaining for the Court to decide are counsel fees, tuition for 2009 and school expenses. Plaintiff seeks a money judgment for the counsel's fees awarded in the amount of $62,899, $57,479 for Christopher Owen and $5,420 for Donald Mastrodominico, by decision of J.H.O. Gartenstein, dated October 14, 2010. The decision indicates that the "delays in bringing this action to conclusion are directly attributable to Defendant." The award was to be paid within 60 days and if not paid within the said time frame, then an application for a money judgment would be entertained. According to Plaintiff, Defendant has not complied with the decision. Defendant opposes Plaintiff's application for a money judgment and seeks leave to renew or reargue the October 14, 2010 decision.
It is noted that a notice of appeal was filed on November 23, 2010 appealing the October 14, 2010 decision awarding counsel fees for the reasons set forth in Defendant's cross motion. It is unclear whether Defendant perfected the appeal as no decision has been provided or filed with the Queens County Clerk and there is no record in the Court's file that the Appellate Division was sent documents upon which the decision was based. Nevertheless, an appeal may not be affected by certain subsequent orders (CPLR 5517).
With respect to the motion for leave to reargue, pursuant to CPLR 2221, the application "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." The instant application for leave to reargue was made almost one year after the decision and thus is untimely.
The application for leave to renew, "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a [*3]change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion" CPLR 2221). Defendant maintains that since the decision was rendered days after the new version of DRL § 237 took effect, the Court should have applied the new law by denying counsel fees to the monied spouse. Contrary to Defendant's contention, DRL §237, as amended on October 12, 2010, applies to all actions and proceeding commenced on or after its effective date. Therefore, even if the new law would warrant a different result, the original decision would stand unless the change in law explicitly applies retroactively. This action was commenced in 2006. Accordingly, the change in the law, which is propounded as a ground for renewal, will not change the outcome of the prior application for counsel fees. Further, Defendant fails to proffer new facts not offered on the prior motion that would change the October 14, 2010 decision. Awarding counsel fees "is controlled by the equities and circumstances of each particular case" (Morrissey v Morrissey, 259 AD2d 472, 473 [2d Dept 1999]) and the Court "may consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation" (Prichep v Prichep, 52 AD3d at 64 [2d Dept 2008]). It is noted that while it is unclear from the record the basis for awarding more than twice the counsel fees requested, this Court lacks jurisdiction to change the memorandum decision. The application for leave to renew is denied.
The application for a money judgment is granted. The parties agreed by stipulation, dated November 3, 2011, that the $10,000 payment due from Plaintiff to Defendant may be credited against the counsel fees due herein. Accordingly, Plaintiff is awarded a money judgment in the amount of $52,899, which is $62,899 counsel fee award less $10,000 credit to Defendant. Plaintiff is directed to settle Judgment within 10 days of the date of this Order. Interest shall accrue on the Judgment from the date of its entry.
Plaintiff seeks to enforce the stipulation of settlement regarding payment of college tuition for the 2009-2010 school year and school expenses for the unemancipated child of the marriage, Emily, as per the parties' stipulation of settlement, dated August 6, 2010. First the Court must address whether Defendant is obligated to pay for tuition and college expenses for the 2009-2010 school year when the stipulation was signed in August 2010.
In construing the agreement, the intent of the parties at the time of contracting is found either from within the four corners of the document or, as a last resort, from available extrinsic evidence (Boster-Burton v Burton, 92 AD3d 909, 910 [2d Dept 2012]).In the stipulation, the parties agreed to pay 100% of the cost of the child's college education at a NYS school and provided for a SUNY cap based on NYS residency. It is curious that the stipulation provides for a SUNY cap "[i]n the event Emily attends a school other than S.U.NY Binghamton" when, at the time the agreement was executed, Emily attended New York University. Further, the stipulation commits Defendant to pay his proportionate share of college education "for Emily's attendance for four years on a full, daytime basis and matriculated in a course of study leading to an undergraduate degree." It is unclear from the language what was the circumstance that cause Defendant to agree to pay for 100% of the cost of Emily's college education for four years when Emily already completed a year of school. Nevertheless, the stipulation is silent as to the effective date of the agreement. The stipulation has no language indicating regarding whether a refund is due for the tuition and college expenses paid for the 2009-2010 school year or that the four years commence after high school graduation. Any ambiguity in the language is construed [*4]against the writer of the agreement.
Looking to the four corners of the stipulation to effectuate the parties' intent, the Court finds that the parties agreed to pay for Emily's tuition and college expenses from the date of the stipulation, August 6, 2010. It is noted that even if the Court found an obligation for Defendant to pay tuition and college expenses for the 2009-2010 school year, Plaintiff's application for a refund is deficient as Plaintiff fails to provide tuition information or bills prepared by the school that identifies the parties' child, the bills for the college expenses and proof of payment of the tuition and college expenses to which reimbursement is sought. There is also no indication that Defendant was the author of the stipulation.
This constitutes the Decision and Order of the Court.
Dated: June 26, 2012So Ordered:
____________________________
PAM JACKMAN BROWN, JSC
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