Culver v Culver

[*1] Culver v Culver 2012 NY Slip Op 52253(U) Decided on December 11, 2012 Supreme Court, New York County Sattler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2012
Supreme Court, New York County

Michael Culver, Plaintiff,

against

Margaret Culver, Defendant.



150635/11



Attorneys for Plaintiff Michael Culver:

George S. Bellantoni

Edward N. Lerner, Lerner & Guarino, LLC

Attorneys for Defendant Margaret Culver:

Norman S. Heller & Tara Jones Willecke, Blank Rome LLP

Lori S. Sattler, J.

In this post-judgment plenary action, plaintiff former husband (hereinafter "Plaintiff") moves by Notice of Motion for an order directing defendant former wife (hereinafter "Defendant") to re-plead her counterclaims pursuant to CPLR §§ 405 and 3024(a) and granting him an extension to respond. Defendant opposes the motion and cross-moves for an order granting her summary judgment on the grounds of res judicata and collateral estoppel; dismissing all claims asserted by Plaintiff; registering an October 15, 2008 decision and order ("2008 Order") issued by the Superior Court of the State of Connecticut (Pinkus J.); finding that Plaintiff owes $225,000 in child support arrears as well $25,000 in counsel fees; awarding Defendant interest at a rate of 10% per annum on the sum of $250,000 and awarding the Defendant counsel fees in the amount of $116,087.80. incurred by Defendant since the date of the 2008 Order. Plaintiff opposes the cross-motion.

This plenary action arises out of claims related to the parties' divorce which was granted in Connecticut by Judgment dated January 14, 1994 (hereinafter "Judgment") and the Stipulation to Judgment dated January 14, 1994 (hereinafter "Stipulation"). In August of 2006, Defendant commenced a post-judgment proceeding in Connecticut seeking a finding of contempt against Plaintiff alleging that he failed to pay child support. In the 2008 Order, Plaintiff was ordered to pay $225,000 in child support arrears and $25,000 in counsel fees within thirty days of that decision. A subsequent decision clarified that the trial judge did not make a finding of contempt against Plaintiff. To date, Plaintiff has not paid the amounts set forth in the 2008 Order.

Plaintiff interposed various defenses in the contempt proceeding. He asserted that the parties had entered into an oral agreement which modified the terms of the Stipulation and Judgment. He [*2]specifically claimed that he had tendered all amounts due for child support by paying private school tuition and other expenses in excess of his basic child support obligation as per the oral agreement with Defendant. He further interposed a fraud and breach of contract claim against the Defendant. He asserted that Defendant had breached the terms of the oral contract between the parties by not following through with the provisions and by her subsequent attempts to recoup child support even after the tuition and other expenses were paid. Defendant further asserted that he should not be required to pay the requested child support amounts based on the doctrines of waiver, laches, equitable estoppel and unjust enrichment.

The 2008 Order addressed Plaintiff's claims regarding the purported oral agreement and found that the agreement between the parties was ineffective to modify the Stipulation and Judgment. The court further held that the defenses of laches, waiver and equitable estoppel all failed, specifically noting that Defendant's delay in bringing the action was excusable and that Plaintiff's position had not changed for the worse when he agreed to pay for private school, as the Stipulation had contemplated that very issue. Similarly, the court denied the claims of abuse of process, breach of contract and fraud.The 2008 Order was affirmed in an appellate decision issued March 15, 2011. Culver v. Culver, 127 Conn. App. 236 (2011). In denying Plaintiff's appeal, the appellate court found that "the facts of this case do not demonstrate that [Plaintiff] exercised due diligence in ascertaining the legal effect of the parties' oral agreement." Id. At 1056 The Court further noted that Plaintiff was a "sophisticated and accomplished businessman with access to knowledgeable legal counsel" and that he "reasonably knew or should have known that the parties' oral agreement was unenforceable absent proper authorization by the court." Id. The appellate court confirmed that the oral agreement was not a valid modification of the Stipulation and Judgment and as such affirmed the lower court's finding of child support arrears.

A little over a year after the Connecticut appellate decision, Plaintiff now comes to New York requesting relief with respect to the oral agreement addressed by the Connecticut courts. The parties are now residents of New York. Plaintiff interposes four separate causes of action. The first, which is not artfully drafted, appears to assert that there was a mutual mistake in that the parties believed that they had the ability to reach an oral agreement to waive child support as consideration for the payment of private school tuition but that they could not do so. Plaintiff requests recision of the oral agreement, claiming that there was no meeting of the minds and asks that the parties be returned to whole.

Plaintiff's second cause of action asserts negligent misrepresentation. The purported representations include Defendant's representation that she had the legal ability to waive basic child support payments in consideration for the payment of private school and that she would not pursue the collection of child support. Plaintiff contends that he relied on these alleged representations.

The third cause of action sets forth a claim of common law fraud. Plaintiff asserts that Defendant knowingly made fraudulent misrepresentations and omitted material facts by her claims that she would not take action regarding the payment of the basic child support obligation in light of the parties' agreement. The final cause of action asserts that Defendant breached the oral agreement. [*3]

As an initial matter, Plaintiff's motion addressed to the adequacy of Defendant's pleadings is denied. Plaintiff fails entirely to identify vague or ambiguous statements or scandalous or prejudicial matter set forth in the Defendant's answer and counterclaim such that re-pleading is necessary.

With respect to the cross-motion, Defendant requests that summary judgment be granted and that Plaintiff's complaint be dismissed based on the doctrine of res judicata and collateral estoppel. In this matter, Connecticut rendered the prior decisions relating to the parties and the oral agreement in the contempt proceeding. Accordingly, this court must apply the laws of our sister state, the rendering jurisdiction, for the purposes of determining the preclusive effect of the prior decisions. Bruno v. Bruno, 83 AD3d 165 (1st Dept. 2011).

The Connecticut Supreme Court has acknowledged the strong public policy behind the doctrines of res judicata and collateral estoppel, noting that they promote judicial economy by reducing repetitive litigation, eliminate inconsistent judgments, as well as prevent a person from suffering from endless vexing litigation. Powell v. Infinity Ins. Co., 282 Conn. 594 ( 2007 ). The court has adopted a transactional test to determine whether the doctrine is triggered, noting that the inquiry is "whether the prior and present action stem from the same transaction." Weiss v. Weiss, 297 Conn. 446, 461 (2010). The court has found that even if "a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action."(Internal citations omitted). Id. Citing Duhaime v. American Reserve Life Ins. Co.,200 Conn. 360, 364, 65 (1985).

In applying the transactional approach, there is no doubt that the claims in the prior action and this proceeding stem from the same transaction. The very facts alleged in the Complaint in this action are the exact set of facts argued before the Connecticut court. Indeed, at least two of the causes of action were directly decided by the Connecticut court, namely the fraud and breach of contract claims.Plaintiff contends that he could not have known until after the Connecticut proceeding the legality of waiving child support as consideration or about the mutual mistake. The court finds these claims to be disingenuous. In entering into the Stipulation of Judgment, Plaintiff expressly agreed that oral modification would be ineffective. That did not, however, prevent him from raising the causes of action interposed in this proceeding in the initial Connecticut proceeding. He was aware that the impact and validity of the oral agreement were in question and he raised a multitude of defenses to indicate why he would be prejudiced if it was not enforced, including a claim for breach of contract or fraud. There was nothing that prevented him from pleading in the alternative as to the causes of action in this matter.

In fact, the Connecticut court has previously addressed Plaintiff's claim with respect to the ability to enforce the oral agreement, and Plaintiff had raised no new matters in this proceeding. Plaintiff was admonished by the appellate court as to these allegations, finding that he was a sophisticated businessman who did not exercise due diligence despite his having access to legal counsel. The Court further noted that Plaintiff was aware of the procedure for modification of the Stipulation and Judgment as the parties had previously executed a written modification which required judicial intervention. Plaintiff's contention that his failure to investigate the legal impact of a purported oral modification provides a basis for him to avoid his obligation under the Stipulation of Judgment, was thus foreclosed by the Connecticut Court.

It is disturbing that despite the numerous proceedings before the Connecticut courts which involved several days of trial and various appeals, Plaintiff would now come in and attempt to get [*4]another bite of the apple in the State of New York. This action undermines the strong public policy behind res judicata and collateral estoppel. By bringing an action in New York, he wastes judicial resources and asks this court to undermine the legitimate order of a sister state. The 2008 Order and subsequent affirmance by the appellate court determined that Plaintiff's child support obligation was not extinguished despite the oral agreement between the parties and there is no basis of a reevaluation of these issues.

Although this court has indicated that dismissal is appropriate under the doctrine of res judicata, it notes that dismissal would also have been appropriate in certain instances under the doctrine of collateral estoppel. Two of the causes of action sought the identical relief that was denied in Connecticut and the remaining two causes of action appear to be mere restatements of the relief sought in Connecticut. Accordingly, that portion of Defendant's cross- motion seeking summary judgment and dismissal of the instant action is granted.

That branch of Defendant's motion seeking an award of counsel fees for all fees incurred since the 2008 Order is granted to the limited extent of awarding them $53,547, the fees incurred with respect to the instant motion practice pursuant to DRL § 237[c] and pursuant to paragraph 6 of the Judgment. Said amount to be paid within thirty days after service of this order with Notice of Entry.

That branch of Defendant's cross-motion seeking to register the 2008 Order is denied without prejudice as Defendant has not complied with the requirements for registry as set forth in the Family Court Act.

All matters not decided herein are hereby denied.

This constitutes the decision and order of the court.

Dated: December 11, 2012

Enter:LORI S. SATTLER, J.S.C.