Piccarreto v Mura

[*1] Piccarreto v Mura 2012 NY Slip Op 52483(U) Decided on October 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2012
Supreme Court, Monroe County

Carla L. Piccarreto f/k/a CARLA L. MURA, Plaintiff,

against

David James Mura, Defendant.



92/9769



For Plaintiff Carla L. Piccarreto f/k/a Carla L. Mura

Mark Chauvin Bezinque, Esq.

For Defendant David James Mura

Donald A. White, Esq.

Davidson Fink LLP

Richard A. Dollinger, J.

In this matter, the defendant/husband seeks leave to renew his opposition to a child support judgment, granted by this court, because there are new facts not offered in a previous motion. The "new evidence" is a recently transcribed 1995 court stipulation that the husband argues, constitutes a waiver of the plaintiff/wife's right to seek child support in the amount set forth in the original judgment of divorce. The court needs to resolve whether the motion for renewal is proper as a procedural matter, and if the court considers the new evidence, whether it should vacate its earlier determination.

The facts are largely undisputed and are contained in an earlier opinion decided by this court. The couple were divorced in 1993 and the husband was ordered to pay $504.83 per week in child support (the court also awarded a judgment for $25,226.72 in child support arrears). Within weeks of the granting of the judgment, the husband moved to vacate. The court declined to vacate the divorce, but it signed an order which "re-opened for determination by the court" issues related to the arrears and on-going child support. The order was signed by a Supreme Court justice and was apparently prepared by the wife's counsel, as it was approved as to form by the husband's counsel. There is no date on the order and there is no evidence that it was filed with the Monroe County Clerk's Office or served on the defendant . A second order, dated March 17, 1994, was signed, filed, and entered, in which the court referred custody and visitation issues — but not child support — to a hearing. In September 1995, another order was issued in the matter awarding $2,500 in legal fees to the wife's counsel. The order was filed. [*2]

Thereafter, according to the evidence the husband seeks to put formally before this court, the parties, each represented by counsel, appeared before a Supreme Court justice and agreed to a resolution of the disputes over the children and child support. The stipulation was taken before the judge, but nothing happened thereafter. The stipulation was not transcribed in 1995 and an affidavit of appearance and the adoption of oral stipulation was not signed by either party. No order, confirming the terms of the stipulation, was ever signed by the Supreme Court judge, nor was any order entered in the Monroe County Clerk's Office. Simply put, the parties and their counsel apparently walked away.

Fast-forwarding 16 years, in an application 10 months ago, the wife sought to recover a judgment for more than 11 years of unpaid child support. In his defense, the husband alleged that he had appeared before the court in November 1995, after the last filed order, and entered into a stipulation in which his wife waived her right to child support under the original decree, and agreed to a lower amount. This court, without proof of the stipulation, or any order based on it, declined to credit his statements and awarded the wife judgment for unpaid child support. The court issued an order that the judgment of divorce was in full force and effect, and not affected by the November 1995 stipulation for which there was no record.

Now, in the current application, the husband seeks to renew his opposition to the prior motion through CPLR § 2221 (e) which permits renewal of the husband's opposition if there are "new facts not offered" on the prior motion that would change the prior determination and there is a "reasonable justification for the failure to present such facts on the prior motion." CPLR § 2221 (e) (2), (3). In support of his application, the husband submits a transcript of the stipulation, dated November 30, 1995. The transcript was discovered by the husband's current counsel. He questioned husband's prior counsel and, after searching the records, made an inquiry to the court's reporting staff and learned that the stipulation, never transcribed, was nonetheless still available for transcription. The stipulation transcript, according to the husband's current counsel, was thus "discovered" on June 28, 2012 — the date the husband's current counsel called the court reporting staff and learned that the recording of the 1995 appearance was still available. Counsel then promptly moved for renewal of the prior motion and asked for modification of the child support judgment.

The November 30, 1995 transcript is not accompanied by an affidavit of appearance and adoption of oral stipulation. The husband presents evidence that wife's counsel prepared an "amended judgment of absolute divorce" and "an income deduction order" after the stipulation. While both documents have been submitted in draft form and were apparently derived from the terms of the stipulation, neither document is signed by the judge who presided over the stipulation. There is no evidence that either order was entered in the clerk's office at any time.

Importantly, at the time of the prior motion, the husband was represented by the same counsel who had represented him during the court appearances in 1993 through 1995. According to affidavits now before the court, previous counsel did not recall the existence of the stipulation until late June 2012. After the husband had changed counsel, his current attorney contacted his previous counsel and probed whether there was some evidence of the stipulation. According to his affidavit, the previous attorney then searched "another file" in his office and found the proposed amended judgment, which referenced [*3]and incorporated the stipulation. This "discovery" prompted current counsel to call the court reporting staff which led to the discovery of the stipulation and its transcription.

The wife argues that the failure of the prior counsel to search his files or to initiate a call to the court reporter staff to find the transcript does not make the transcript "newly discovered evidence." The wife notes that the husband had sworn, in prior affidavits, that he had appeared in court in 1995 and that she had agreed to modify the support arrangements, but his counsel, at the time of the prior motion in the Fall of 2011, never checked to see if there was a transcript, and never asked the court to investigate whether such a transcript existed. In short, the wife argues that the evidence was extant throughout this proceeding and any reasonable investigation would have produced it earlier, when the first motion was heard.

If the transcript at issue in this case "could have been discovered and presented earlier with due diligence," this court cannot re-open its earlier determination. Kirby v Suburban Elec. Engrs. Contrs., Inc., 83 AD3d 1380 (4th Dept. 2011) (renewal denied if the missing evidence was within the purview of plaintiff's knowledge at the time of motion practice); Dicienzo v. Niagara Falls Urban Renewal Agency, 63 AD3d 1663 (4th Dept. 2009) (renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation); Brooklyn Welding Corp. v. Chin, 236 AD2d 392 (2nd Dept. 1997) (negotiations in which the petitioner had played an active and important role, and thus already had substantive knowledge of was not "newly discovered evidence"); Ingersoll v. Security Trust Co., 51 AD2d 874 (4th Dept. 1976) (renewal denied when this evidence existed at the time of the prior motion and petitioner failed to show why it was not presented earlier).

In this case, it is difficult to characterize the transcript as "newly discovered" evidence that was unknown or unavailable to the husband — or his counsel — on the prior motion. The husband's previous attorney appeared in court with the husband at the time of the stipulation in 1995 and specifically addressed the issue of the payment of child support. But neither the husband, nor the previous attorney undertook any due diligence to find out whether the transcript existed prior to responding to the motion in late 2011. The husband never asked this court to assist in the search for the transcript. There was no "diligence" by the husband or previous counsel to locate this evidence prior to the wife's motion. The fact that the husband's prior counsel was able, after new counsel had been retained, to rummage through an old file and find an indication that the stipulation might exist does not suffice to transform the known stipulation from 1995 into "newly discovered evidence" in 2012.

In analogous cases, the courts have declined to grant renewal under CPLR § 2221 (e). In one example, a court denied renewal because documents were available in another court and "easily discoverable." Webber v Scarano-Osika, 94 AD3d 1304 (3rd Dept. 2012). In a second example, the parties signed an agreement regarding real property five years before an action was brought relating to the real property. The agreement was not produced upon the initial motion. The aggrieved party sought renewal, arguing that he had only "vaguely remembered" that there was an agreement and had forgotten that it had been reduced to writing. The Third Department affirmed the lower court determination that there was "no justification for the . . . failure to obtain and submit the agreement," especially because the applicant remembered that there was an agreement, but failed to [*4]bring it forward. Kahn v. Levy, 52 AD3d 928 (3rd Dept. 2008). Simply put, if the missing proof is "within the purview of the plaintiff's knowledge," there is no "justifiable excuse as to why the new information was not previously submitted." Tibbits v. Verizon New York, Inc., 40 AD3d 1300 (3rd Dept. 2007). Here, the husband and his prior counsel knew — and repeatedly alleged — that the original divorce judgment had been modified through a subsequent court appearance. The fact that an oral stipulation before a Supreme Court justice existed was within the purview of the husband's knowledge and his counsel's knowledge. The transcript cannot be called "new evidence" if it was known to both the husband and his counsel at the time of the prior motion.

While this factual determination would seemingly settle this matter, this court notes appellate divisions in New York have permitted courts to entertain renewal under CPLR § 2221 (e) even if the additional facts were "known to the movant" at the time of the motion. Under this line of cases, the rule in CPLR § 2221 (e) is "not inflexible." The court may grant renewal in the interests of justice, or if denial would "defeat substantive fairness," even if there is insufficient evidence of a reasonable justification for the delay in presenting the evidence or the facts were known to the movant at the time of the original motion. See Rancho Santa Fe Assn. v. Dolan-King, 36 AD3d 460 (1st Dept. 2007); Garner v. Latimer, 306 AD2d 209 (1st Dept. 2003). However, it appears this rule is confined to the First Department. Queens Units Venture, LLC v Tyson Court Owners Corp., 2012 NY Slip Op 31390(U) (Sup. Ct. New York Cty. 2012); Larabee v. Governor, 2012 NY Slip OP 22258 (Sup. Ct. New York Cty. 2012). The Third Department has expressly rejected "substantive fairness" regarding CPLR § 2221 (e) and still requires that the facts be "unknown to the movant" at the time of the initial motion. Webber v Scarano-Osika, 94 AD3d 1304 (3rd Dept. 2012) ("we are not at liberty to disregard the statutory requirement — demonstration of a reasonable justification for delay — in the interests of justice"). The Fourth Department view accords with the Third Department and that court will not permit renewal unless there is a reasonable justification for the failure to present the facts on the prior motion. Kirby v Suburban Elec. Engrs. Contrs., Inc., 83 AD3d 1380 (4th Dept. 2011); Blazynski v. A. Gareleck & Sons, Inc., 48 AD3d 1168 (4th Dept. 2008); Robinson v. Conrail, 8 AD3d 1080 (4th Dept. 2004). While this court is fully cognizant of the "substantive fairness" involved in the husband's attempts to re-open his child support obligations based on a verbal stipulation — to which his ex-wife assented — more than 15 years ago, this court will not peek behind the express language of CPLR § 2221 (e). The introduction of a court-created "substantive fairness" exception to the black letter language of CPLR § 2221 (e) will too easily exceed the legislative direction that renewal should be, as one court noted, used "sparingly." Ocean Diagnostic Imaging P.C. v. General Assur. Co., 12 Misc 3d 137(A) (Sup. Ct. App. Term 2006).[FN1]

Even if this court re-opened its prior decision, the court rejects the husband's claim that the stipulation acts as a "waiver" of the wife's right to claim the child support under the [*5]original divorce decree. This court acknowledges that the wife could waive child support; even oral waivers of child support have been upheld. Williams v. Chapman, 22 AD3d 1015 (3rd Dept 2005); O'Connor v. Curcio, 281 AD2d 100 (2nd Dept. 2001). However, these cases can be distinguished. In both matters, the party seeking enforcement, took action in reliance on the purported waiver. In O'Connor v. Curcio, the child lived with the father after the mother waived child support payments from the father in a written agreement. The court held that the husband's acceptance of the financial responsibility for the child while in his residence prohibited the wife from revoking her written, but unacknowledged waiver. In Williams v. Chapman, the original agreement bound the husband to pay support for two children. When one child moved in with him, the parties, in a handwritten document, agreed that the child support would be suspended while each parent had a child under their roof. The court upheld the waiver, in significant measure because the husband had relied on it when he took the child into his home. As a matter of law, each parent would have been required to contribute to the support of each child in their abode, but each party waived their right to claim that support. In essence, the parents each waived their right to claim child support and because the husband had changed his position in reliance on the wife's waiver — by taking one of the children into his residence — the wife's implied waiver was enforceable. Williams v. Chapman at 1017. See also Stevens v. Stevens, 82 AD3d 873 (2nd Dept. 2011) (waiver enforceable when husband took one child into his custody).

Although distinguishable in this instance, the Williams v. Chapman opinion is relevant because it delineates a distinction between a modification of an agreement and a waiver. A modification occurs, the court noted, when a party applies to the court to change the payments, and any order in that proceeding must comply with the Child Support Standards Act ("CSSA"). The court adds that even if the modification agreement does not comply with the CSSA, it may nonetheless constitute a valid waiver. However, the waiver must be a "knowing and intentional relinquishment of a known and otherwise enforceable right." Stevens v. Stevens, 82 AD3d 873 (2nd Dept. 2011).

In this case, as noted above, the proceeding before the judge in 1995 was not a waiver proceeding. It was the husband's application to modify a prior judgment. In essence, what the husband argues now is that he moved for a binding modification of his court-ordered support obligation in 1995. What he ended up with was an unenforceable agreement, stripped of its legal effectiveness because of the combination of the lack of an executed and acknowledged adoption of the oral stipulation — required under DRL § 236B (3)[FN2] . It also failed to comply with the Family Court Act § 413 (1) (h), which requires a recitation of the presumptively correct child support in the stipulation. He now seeks to pluck out of the recited stipulation the wife's waiver of her right to collect the child support under the prior judgment, and argues that it was a "knowing and intelligent" waiver because it occurred in a courtroom, before a judge, and with the assistance of counsel.

In considering these arguments, even if the stipulation is construed as a waiver as the husband argues, there is no evidence that either party changed their legal position as [*6]a consequence of the waiver. The husband never took either child into his home as occurred in both Williams v. Chapman, 22 AD3d 1015 (3rd Dept. 2005) and O'Connor v. Curcio, 281 AD2d 100 (2nd Dept. 2001). The husband argues that he relied on the waiver when undertook the obligation to pay health insurance costs for his children, and thus, he changed his position. However, the offset of the child support payment by the health insurance contributions is a deviation from the Child Support Standards Act. There is no evidence that at the time of the stipulation either party had been advised of the presumptively correct amount that would have been awarded under CSSA, and the recited stipulation contains no evidence of the reasons for the deviation. See McCarthy v. McCarthy, 77 AD3d 1119 (3rd Dept. 2010). Therefore, the trade-off which the husband argues occurred — reduced child support for payment of the health insurance expenses — and which he further argues binds the wife to her waiver of her claims under the prior decree, is unenforceable under the Child Supports Standards Act. DRL § 240 (1-b) (h).

Furthermore, there is no suggestion by anyone in the courtroom during the stipulation in 1995 that the wife, in entering the stipulation, was "waiving" a claim for child support. The wife's attorney read the stipulation and never mentions the word "waiver." She simply recites the child support to be paid. In a later section of the stipulation, she discusses arrears for child support. She indicates that the amount of arrears would be determined by the court, but there is no evidence the wife waived any arrears. In fact, a review of the transcript reveals that the word "waiver" was never used by the wife's attorney, never used by the husband's attorney, and never invoked by the judge, who heard the entire stipulation. In addition, the work product of the wife's attorney, after the stipulation had been entered, does not provide any support for the conclusion that any of the parties — or their counsel — interpreted the transcribed colloquy as a waiver. In the submission to this court, the husband includes drafts of the orders, and the word "waiver" do not appear. In contrast, the wife's counsel, during the stipulation, described the husband as having brought a "an order to show cause for modification."

One other fact in the stipulation strongly militates against a finding of a waiver. The presiding judge, at the end of the stipulation, announced that the "parties will sign an affidavit of adoption of oral stipulation" and advised that the wife's attorney would prepare an "order based on the stipulation and submit the stipulation." There is no evidence that the wife or the husband ever signed the adoption of oral stipulation. Certainly, based on the comments of the trial judge, the exchange between counsel and the acceptance by the couple was not an "oral waiver" of child support. It was an oral stipulation to a modification agreement, which required a signed affidavit of adoption and a signed order to be binding on both parties. If the trial judge, present in the courtroom at the time of the recitation, required a signed and acknowledged writing and a signed order to legalize the wife's agreement to the terms of the modification, why should this court, sitting nearly two decades later, allow a husband to recast the entire character of the proceeding and convert this modification agreement into an oral waiver of support? To do so would be pure revisionism and retroactively change the nature of the original proceeding before the presiding trial judge. The trial judge certainly understood that the wife's assent to the revised child support terms and the modification of the husband's obligations would not be binding without the required signatures and a signed order. This court declines to alter the presiding judge's decision 17 years ago. [*7]

Finally, this court, in its exercise of discretion and in equity, would still not permit the husband to enforce the purported waiver of child support. The husband has not presented any proof that he fulfilled a series of obligations set forth in the stipulation. He agreed to provide evidence that a wage deduction order through CSEU would interfere with his securities license and impact his employment. He agreed to participate in calculating arrears under the prior agreement and to provide evidence of his life insurance coverage. He agreed to supply his wife with documentation of the payment of health insurance costs for his sons, which were projected as credits against his child support obligations. There is no evidence before this court that he fulfilled any of those promises. In addition, he readily admits that he stopped paying child support in 1999, when he claims that his health insurance costs were greater than his estimation of his child support obligations. At no time did he seek court approval to be relieved of the statutorily-required obligation to pay child support. Even if this court accepted his argument that a waiver occurred and his support obligations were reduced, the husband still unilaterally stopped paying child support four years after the alleged waiver and never sought court approval. In short, there is no evidence that the husband followed through on the promises he made during the stipulation, but now, 13 years after he unilaterally stopped paying any child support, he seeks to enforce an alleged promise made by his wife 17 years ago to waive her right to child support payments under the prior judgment. To enforce the waiver, would require this court to ignore the husband's lack of compliance with promises he made the same day as the alleged waiver, ignore the commandments of the Domestic Relations Law regarding the wife's notice of her right to presumptive child support, ignore the requirements for an acknowledged agreement under the Domestic Relations Law, and reward a husband who stopped paying the support 13 years ago. This court will not permit the husband to reinterpret the events of 1995 in such a fashion.

The transcript of the 1995 proceeding is not "newly discovered evidence" under CPLR § 2221 (e) and there was no reasonable justification for the lack of its presentation to the court on the prior motion. Even if considered, this court does not interpret the stipulation as a waiver, but rather as a modification agreement, which would not comport with the requirements of the Family Court Act or the Domestic Relations Law. Finally, even if this court concluded that it was waiver, as the husband strenuously argues, this court will not enforce it, in equity, in view of the husband's long failure to comply with his obligations.

The husband's requested relief is denied. The motion for renewal is denied.

Submit order.

Dated: October 16, 2012_____________________________________

Richard A. Dollinger Footnotes

Footnote 1:CPLR § 2221 (e) was amended by the Legislature in 1999 to expressly require that the movant establish a "reasonable justification for the failure to present the facts" before renewal can be granted. Webber v. Scarano-Osika, 94 AD3d 1304 (3rd Dept. 2012); Ulster Savings Bank v. Goldman, 183 Misc 2d 893, 895 (Sup. Ct. Rensselear Cty. 2000).

Footnote 2:See Galetta v. Galetta, 947 NY2d 260 (4th Dept. 2012), citing Matisoff v.Dobi, 90 NY2d 127, 137-138 (1997).