Loike v Kletenik

[*1] Loike v Kletenik 2012 NY Slip Op 51430(U) Decided on July 26, 2012 Supreme Court, Nassau County Palmieri, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2012
Supreme Court, Nassau County

Chaim D. Loike, Plaintiff,

against

Pesha C. Kletenik, Defendant.



202277/10



Attorney for Plaintiff

Aliza Goldring, Esq.

Schonfeld & Goldring, LLP

112 Spruce Street, Ste. A

Cedarhurst, NY 11516

Attorney for Defendant

Weisman Law Group, P.C.

140 Spruce Street

Cedarhurst, NY 11516

Daniel Palmieri, J.

The following papers were read on this motion:

Order to Show Cause, dated 12-15-11.............................1

Notice of Cross Motion, dated 1-23-12.............................2

Reply Affirmation in Opposition and Further Support,

dated 3-6-12............................................................3

The motion by the plaintiff (003) for an order 1) pursuant to CPLR 7511 vacating the determinations and awards of an arbitration panel ("Beth Din") dated August 1, 2011, 2) downwardly modifying an Order of Support on Consent ("Consent Order") dated October 25, 2010 (Miller, Support Magistrate), and 3) having this Court "so-order" a Modification Agreement to Final Order of Custody is granted to the extent that so much of the August 1, 2011 award that directs any action concerning custody and visitation of and with the minor children of the marriage is vacated as against public policy, the [*2]Modification Agreement will be "so-ordered" upon separate submission to the Court, and the plaintiff may raise the issue of permanent child support at the trial. The motion is otherwise denied.

The cross motion by the defendant (004) for an order 1) pursuant to CPLR 7510 confirming the Beth Din determinations and awards, 2) granting a money judgment based thereon, 3) directing plaintiff to file a proposed judgment of divorce, findings of fact and ancillary papers as required to finalize the divorce, and 4) imposing sanctions pursuant to 22 NYCRR § 130-1.1 is granted to the extent indicated in this order, and is otherwise denied.

As the defendant has no objection to having this Court "so order" the Modification Agreement, it may be submitted separately for that purpose.

All requests for relief not specifically addressed are denied.

By Consent Order of the Family Court dated October 25, 2010 (Miller, Support Magistrate) the plaintiff husband was to provide support for the three minor children of the marriage by payment of $697 bi-weekly to the defendant wife. By order dated November 8, 2010 the Supreme Court (Brown, J.) issued a pendente lite decision and order. Upon the plaintiff's alleged failure to comply with the pendente lite order, the defendant moved to punish the plaintiff for contempt. However, on March 7, 2011, the contempt motion was withdrawn after the parties on that date entered into a written agreement to arbitrate the financial issues of the marriage before a Jewish court, the Beth Din. The subject matter of the arbitration is described broadly in that writing as "Divorce and Related Financial Matters." However, there was no statement made or action taken with respect to the Family Court Consent Order. In addition, the Family Court issued a Final Order of Custody and Parenting Time dated June 7, 2011 (Bennett, J.).It should be noted that although this Order of Custody post-dated the agreement to arbitrate, the Beth Din arbitrators were not by dint of that agreement empowered to render final and enforceable decisions about custody and visitation, as this has been left to the secular courts for policy reasons. See, Glauber v Glauber, 192 AD2d 94 (2d Dept. 1993); see also, Hirsch v Hirsch, 4 AD3d 451(2d Dept. 2004).

With that exception, the Beth Din arbitrators were empowered to hear and determine all issues, which were financial in nature, and their determinations in this area are enforceable by the secular courts of this State. Avitzur v Avitzur, 58 NY2d 108 (1983), cert denied 464 US 817 (1983). Further, by participating in the arbitration and failing to raise objections to the panel, the plaintiff has waived any claim that the process was tainted or biased against him. Atlantic Purchasing, Inc. v Airport Properties II, LLC, 77 AD3d 824 (2d Dept. 2010); Matter of Riley v Progressive Ins. Co., 5 AD3d 776 (2d Dept. 2004). Nor does he expressly claim that the award itself was the result of actual bias by the arbitrators. See Matter of Kornit [Plainview-Old Bethpage Cent. School Dist.], 49 NY2d 842 (1980). Similarly waived by his participation would be any attack on the validity of the agreement to arbitrate itself. See Sims v Siegelson. 246 AD2d 374 (1st [*3]Dept. 1998). "The only basis upon which an award can be vacated at the behest of a party who participated in the arbitration... is that the rights of that party were prejudiced by corruption, fraud or misconduct in procuring the award, partiality of an arbitrator, that the arbitrator exceeded his power or failed to make a final and definite award, or a procedural failure that was not waived." Matter of Silverman [Benmore Coats], 61 NY2d 299 (1984).

Here, the plaintiff claims that the arbitrators exceeded their powers which, as defendant correctly argues, must rest on the fact that an award 1) violates strong public policy, or 2) was irrational, or 3) clearly exceeds a specific limitation on the arbitrators' powers. Matter of New York City Trans. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY2d 332, 336; Matter of Grossman v Ilowitz, 72 AD3d 821(2d Dept. 2010). With the foregoing law in mind, the Court turns to the objections to specific aspects of the award raised by the plaintiff in support of his motion to vacate the Beth Din's determinations. At the outset, the Court rejects the plaintiff's claim that the arbitrators exceeded their powers with regard to their financial rulings, as the general language contained in the agreement to arbitrate clearly covers the same.

The plaintiff first claims that the Beth Din failed to make a determination with regard to child support and child support add-ons. However, because the parties already had the secular Consent Order in place, which plaintiff does not claim either party challenged before the arbitrators, the absence of a ruling on this subject cannot be seen to invalidate the award, but rather simply left the Consent Order unaffected.[FN1]Next, he contends that the Beth Din stated that a forensic psychologist "should be appointed" to make recommendations regarding custody and visitation of the children, which was never raised, and was outside the scope of financial issues. There are two paragraphs in the determination that address the use of a mental health professionals, numbers 2 and 10. The former contains only a direction that they seek advice and guidance only from a "trained professional", and thus did not compel a certain act by either party with respect to the children. The latter contains a "recommendation" that an approved forensic psychologist be scheduled to interview the parents and children, and report to the Beth Din, which will make further "recommendations" regarding custody and visitation. As these indicate that mere "recommendations" will be made, there is no present direction regarding custody and visitation made.

However, in view of the strong public policy leaving such determinations to the Court (Glauber v Glauber, supra), those provisions that may be interpreted as directing any action concerning such matters are vacated.This would include, for example, that portion of the award that provides that unresolved disputes concerning the children would [*4]be referred to a named Rabbi, to whom the parties were to defer. Further, Judge Bennett's Family Court order regarding custody and parenting time remains in full force and effect and cannot be altered as a result of this Court's confirming a contrary arbitration award, as the Family Court is a court of coordinate jurisdiction and equal authority with respect to those matters, and its orders cannot be overturned or modified by the Supreme Court. Grossman v Composto-Longhi, 96 AD3d 1000 (2d Dept. 2012).[FN2]

The plaintiff next asserts that the arbitrators directed him to pay a camp fee of $1,400 for the children, although this never was raised at the meetings the parties had with the Beth Din. Nevertheless, and assuming this to be true, the Beth Din had the power to issue this ruling, which is not claimed to be irrational. Plaintiff then claims that the arbitrators directed him to continue paying for the children's health insurance, without determining the amount of reimbursement to be paid for his paying the premiums from the date the parties separated. This too does not speak to the arbitrators' power, and is covered by the agreement to arbitrate.

He further complains that the Beth Din did not give him, in effect, any equitable distribution of his wife's future earnings, pointing out that her professional degrees were earned during the marriage. Relatedly, he contends that the Beth Din never received documentation regarding the expenses his wife claimed were owed, and that he was not given the opportunity to cross examine any witnesses regarding these expenses or given a chance to prove the expenses were wrong or invalid. He also complains that when his representative at the arbitration hearing, a named Rabbi, could not attend one particular session because of a conflict in his schedule, the proceedings went forward nonetheless.

To the extent the plaintiff complains about the level and type of proof upon which the panel relied, the Court's response must be that the panel was free to do this under the agreement to arbitrate, notwithstanding plaintiff's objection thereto. Unless the agreement to arbitrate provides to the contrary (not the case here), arbitrators are not bound by principles of substantive law or by the rules of evidence, but may do justice as they see it, applying their own sense of law and equity to the facts as they find them to be. Brown & Williamson Tobacco v Chesley, 7 AD3d 368, 372 (1st Dept. 2004). A court should not set aside an arbitrator's award for errors of law or fact unless that award is so irrational that vacatur must result. Matter of Empire Mut. Ins. Co. v Jones, 151 AD2d 754 (2d Dept. 1989). The determinations made here are not so irrational as to require this result, and indeed there is no substantive claim by plaintiff that they are.

Plaintiff also asserts an alleged failure to permit him cross examination or to [*5]submit opposing proof, and that the decision by the panel to go forward in the absence of his representative prejudiced him. However, it is the law that every procedural right may be waived by simply proceeding with the arbitration without objection, except for representation by an attorney, not in issue here. Matter of Silverman [Benmore Coats], 61 NY2d 299, at 307, supra; CPLR 7506. There is no proof submitted by the plaintiff, and he does not expressly contend, that a procedural objection was made to the arbitrators and that he continued with the arbitration only after he or his representative indicated, in effect, that they were proceeding under protest, thereby preserving the objection. The Court notes that his representative has not submitted an affidavit or affirmation to the Court here in support of plaintiff's contentions. Moreover, for the Court's purposes in deciding these applications plaintiff does not provide any statement as to what proof he was unable to offer that would have served to rebut defendant's testimony, nor what impact the absence of his representative had on the proceedings that day. To the extent the plaintiff raises the panel's contact with his children's psychologist and "several other witnesses" without his knowledge or consent, this concerns the welfare of the children and is academic in light of the Court's ruling vacating that portion of the award on policy grounds. Accordingly, the Court finds the procedural objection to have been waived, and if not waived, insufficiently supported here to overturn the Beth Din's determinations.

Indeed, the most problematic aspect of the decision is one that is raised by the plaintiff in the "background" portion of his affidavit, but is not further stressed in his arguments and is not addressed by the defendant on her cross motion. This has to do with the finality of the Beth Din's determination, as plaintiff has annexed a letter dated October 28, 2011 "to whom it may concern" from the Beth Din of Vaad Harabonim of Queens, signed by Rabbi Chaim Schwartz on behalf of the Beth Din.That letter states that "we require additional time to amend and clarify our ruling which contained some, but not all, of our determinations. We require this additional time and need to submit a further writing so that the final determination of this tribunal is not misinterpreted and misapplied by the New York courts." The plaintiff states, without contradiction, that the Beth Din has not further contacted him, and neither party has informed the Court that further determinations of the Beth Din affecting the August 1 award had been made.

As set forth above, one of the bases for setting aside an arbitration award is that the arbitrators "failed to make a final and definite award" Matter of Silverman [Benmore Coats], supra. However, on its face the decision was final and definite with respect to the financial matters addressed therein, and the Court cannot allow the civil justice system and the litigants who come to that system for relief to be held hostage to this kind of open-ended statement that the decision was to be amended. Rather, the Court finds the determination dated August 1, 2011 to be final for purposes of these motions. Indeed, in the decision itself the Beth Din "reserved the right to review and modify any and all items in this decision." Should it do so, the Court will entertain an appropriate application [*6]from either party to confirm or vacate what ever additional directions or awards are made by the arbitrators.

In view of the foregoing, the motion to vacate the arbitration award is granted to the extent that so much of the August 1, 2011 award that directs any action concerning custody and visitation of and with the minor children of the marriage is vacated as against public policy, but is otherwise denied.That branch of the cross motion that is to confirm the award is granted as to all financial matters addressed by the arbitrators, but is denied as to all awards concerning custody and visitation of and with the minor children of the marriage.

The Court now turns to so much of the plaintiff's motion that seeks a downward modification of the support Order on Consent, and that branch of the cross motion that seeks a judgment for $7,884.50. The Order on Consent directed payment of $697 bi-weekly, through the Support Collection Unit, a sharing of costs of health insurance for the family, the children's unreimbursed health care expenses, educational expenses and reasonable child care expenses. Camp expenses were to be shared 35% by the wife and 65% by the husband.[FN3]

The Order opens with language giving either party the right to seek a modification upon a showing, inter alia, "that there has been a change in either party's gross income by fifteen percent (15%) or more since the order was entered.." and concludes with a statement that "The settlement is without prejudice to any determination that might be made in a matrimonial action."Therefore, under the Consent Order the parties were free to enter into the agreement to arbitrate after the Supreme Court matrimonial action was commenced by the plaintiff husband, which led to the arbitration award that is the subject of the present motion and cross motion. The award of the arbitrators has, in effect, replaced the support order issued by the Support Magistrate on consent to the extent the Beth Din made any changes to the terms of that order.

Under the arbitration award, however, the Beth Din did not establish a contrary child support figure, and did not address in any manner any of the other provisions of the Consent Order, except to direct that the husband shall "continue to insure the children under his current medical insurance plan at the OU, his current employer." Arbitration Award, at ¶ 9. It did establish arrears of child support and "add-on" child support arrears of $7,884.50, and ordered plaintiff to pay camp expenses of $1,400.

On this motion, the plaintiff seeks to downwardly modify the bi-weekly support and "add-on" obligations imposed on him by recalculating the Child Support Standards Act figures to account for what he claims is a large increase in the defendant's salary. He contends she now earns approximately $150,000 per year, up from approximately [*7]$66,000. He also seeks to eliminate entirely a $200 weekly payment for child care expenses (plaintiff's one-half share) because their youngest child now attends both camp and school, and no longer needs the care represented by the weekly payment.

As this present matrimonial matter remains open, and the support directives established by the Consent Order are subject to change by this Court (or the Beth Din under the parties' arbitration agreement), the Court will treat them as temporary pendente lite support directives, as they serve the same function and were issued by a court of competent jurisdiction. Indeed, as noted in a footnote above, Justice Brown referred to this Consent Order in his pendente lite decision in denying additional temporary relief.

Modifications of such pendente lite orders should be sparingly made, upon a showing that exigent circumstances are present, such as where a party is unable to meet his or her own needs, or where the interests of justice otherwise require granting relief. Rosner v Rosner, 73 AD3d 1151 (2d Dept. 2010); Lueker v Lueker, 72 AD3d 655 (2d Dept. 2010). In that regard, it should be noted that it is not just income but resources generally that should be evaluated by a court. See, Sinanis v Sinanis, 67 AD3d 773 (2d Dept. 2009); see also, Ruane v Ruane, 55 AD3d 586 (2d Dept. 2008) [capital gains accumulated three years before court's determination considered as resource to payor for pendente lite support, even though payor's income had declined]. In addition, even in cases where the payor spouse has been terminated from employment, he or she must be able to demonstrate that diligent efforts were made to secure re-employment. See, Conway v Conway, 79 AD3d 965 (2d Dept. 2010); Barson v Barson, 32 AD3d 872 (2d Dept. 2006). Finally, it is familiar law that perceived inequities in a pendente lite award are best addressed by a speedy trial. Rosner, supra; Levine v Levine, 19 AD3d 374 (2d Dept. 2005).

Here, the plaintiff husband has provided no proof that he is unfairly burdened — indeed, he has presented no evidence of his current financial circumstance at all. The defendant wife acknowledges that she is making more money. The paystub she provides is proof that the adjusted gross figure (after deduction of Social Security and Medicare tax only) is approximately $3,780 per bi-weekly pay period, or $98,280 per annum, not the $150,000 claimed by the plaintiff. It is, however, an increase of approximately 49% over the $66,000 noted by the Support Magistrate in his findings. In any event, under the authority set forth above the focus on downward modification of a temporary support order must be on the payor, with the new income of the wife to be considered at the trial, presently scheduled for October 22, 2012, discussed below. Accordingly, that branch of the motion that is for a downward modification of the Consent Order is denied.

In view of the foregoing, that branch of the cross motion that is for a judgment for arrears in favor of defendant and against the plaintiff in the sum of $7,884.50, with interest from August 1, 2011, is granted. As noted above, that branch of the motion that is to confirm the arbitration award is granted to the extent that all provisions thereof that concern financial matters are confirmed, but is otherwise denied with respect to matters of [*8]custody and parental access.

That branch of the cross motion that is for a direction to the plaintiff to submit a judgment of divorce and ancillary papers is denied. Notwithstanding the defendant's contention that the matter is ready for judgment, the defendant herself has acknowledged that her gross income has changed by more than 15%, giving the plaintiff the right to seek a revision under the Consent Order, key provisions of which, as stated above, were not addressed and hence not altered by Beth Din. Consequently, as under the terms of that Order itself revisions were contemplated in a Supreme Court matrimonial action, and the Beth Din was silent on a permanent order of support (even though, as indicated above, the arbitrators had the power to render a determination thereon, including adopting the Consent Order as their own), the issue has been left open for this Court. It cannot, in the face of the plaintiff's rights, read into the Beth Din Award a provision that does not exist, i.e., that it adopts the Consent Order figures as the basis of a permanent award. The only reference was for purposes of establishing arrears to that point. Accordingly, absent further action by the Beth Din or an agreement of the parties, the Court will conduct a trial on the issue of the correct child support and add-ons to be paid by the plaintiff. It should be noted that any downward change in the amount of support, if made, will not affect arrears in view of the strong public policy against restitution or recoupment of pendente lite child support overpayments. Johnson v Chapin, 12 NY3d 461 (2009); Manning v Manning, 82 AD3d 1057 (2d Dept. 2011).

That branch of the cross motion that is for sanctions is denied. Although plaintiff's motion has been denied, in view of the questions raised by the arbitration award the Court cannot find his motion to vacate to be frivolous. As frivolous conduct is the sole basis advanced for an award of fees, none will be granted.

This shall constitute the Decision and Order of this Court.

Dated: July 26, 2012

E N T E R:

__________________________

HON. Daniel Palmieri, J.S.C.

Footnotes

Footnote 1: It is worth noting that in his pendente lite order, Justice Brown denied plaintiff's request for child support because the Consent Order was in place, lending additional judicial force to its terms and effectively adopting it in lieu of a separate order for temporary child support.

Footnote 2: This does not, however, prevent the parties from stipulating to alter that order because the order itself memorialized an on-the-record stipulation reached on April 5, 2011. Under these circumstances this Court will "so order" that stipulation because in effect this does no more than modify a prior stipulation, and therefore does not constitute an inappropriate alteration of another judge's determinations, as contemplated by the court in Grossman.

Footnote 3: The plaintiff contends, without contraction, that the figures for camp were inadvertently inverted and corrected, so that the Court finds that the wife was responsible for 65% and the husband 35%.