Janice S. v Christopher S.

[*1] Janice S. v Christopher S. 2012 NY Slip Op 52494(U) Decided on September 7, 2012 Supreme Court, Orange County Marx, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 7, 2012
Supreme Court, Orange County

Janice S., Plaintiff,

against

Christopher S., Defendant.



8722/11



Attorney(s) for Plaintiff

Meth Law Offices, PC

P.O. Box 560

Chester, NY 10918

Attorney(s) for Defendant

Greenwald Law Office

99 Brookside Avenue

Chester, NY 10918

Paul I. Marx, J.

This decision contains a child support order. The parties are advised that pursuant to the Low Income Support Obligations and Improvement Act of the Laws of 2010, contained in Domestic Relations Law §236B(7)(d) and (9)(b)(2) and Family Court Act §451, unless the parties have specifically opted out of subparagraph (2) or (3) below in a validly executed agreement or stipulation, either party has the right to seek a modification of this child support order upon a showing of:

1.a substantial change of circumstances; or

2.that three years have passed since the order was entered, last modified, or adjusted; or 3.there has been a change in either party's gross income by 15% or more since the order was entered, last modified, or adjusted, provided that the reduction in income was involuntary and the party has made diligent attempts to secure employment [*2]commensurate with his or her education, ability, and experience.

The parties are further advised that, pursuant to Domestic Relations Law §236B(9)(b)(2), child support arrears that have accrued prior to the date of application to annul or modify any prior order or judgment as to child support may not be reduced or annulled.

By Decision and Order dated May 22, 2012, this Court directed a hearing to resolve: (1) plaintiff's application, brought by Order to Show Cause,[FN1] seeking an order modifying or terminating her obligation to make spousal support payments of $200.00 per week to defendant pursuant to the parties' Stipulation of Settlement set forth on the record on March 3, 2009 and as awarded in the Judgment of Divorce granted by the Hon. John K. McGuirk (JSC. ret.) dated July 8, 2009; and (2) defendant's application, also brought by Order to Show Cause,[FN2]seeking: (a) a money judgment for alleged maintenance arrears, (b) an upward modification of the spousal support payments due to him from $200.00 per week to $635.00 per week, (c) an order holding plaintiff in contempt based upon her alleged willful violation of the terms of the Judgment of Divorce, and (d) an award of counsel fees associated with defendant's application.

On July 26 and 27, 2012, the Court conducted the hearing. Both parties testified at the hearing. Plaintiff did so credibly; defendant's testimony lacked credulity in many respects. As such, where there is a discrepancy in the testimony of the two parties, the Court finds plaintiff to be more credible and her testimony is being credited.

For the reasons set forth herein, the applications are disposed of as follows:

1.Plaintiff's motion to modify her spousal support obligation to defendant is denied;

2.Defendant's application for a money judgment for maintenance arrears is denied, except to the extent indicated below;

3.Defendant's motion to increase the amount of spousal support plaintiff is obligated to pay to him is denied;

4.Defendant's motion to hold plaintiff in contempt is denied in all respects; and

5.Defendant's application for legal fees is denied in all respects.

In addition, on the Court's own motion, so much of the Decision and Order of May 22, 2012 as denied plaintiff's application for child support is recalled and vacated and plaintiff is granted child support from defendant as set forth below.

Child Support

The Court turns first to the plaintiff's request for child support which was denied in the Decision and Order of May 22, 2012. Upon reflection, the Court recognizes that denial of that portion of the motion was improper and not consistent with prevailing law.

In her Order to Show Cause, plaintiff sought an order directing defendant to pay child support for the un-emancipated children of the marriage. In support of her application, plaintiff contended that defendant was not initially ordered to pay child support in the Judgment of Divorce because he was not working at the time the Stipulation of Settlement was entered into, but that he had since moved to Florida and was holding himself out as a play producer and seeking other employment in the education industry. In support of her written application, plaintiff asserted that she is struggling [*3]financially to provide for herself and the parties' five children.[FN3]Plaintiff also claimed that in an e-mail which defendant sent on October 22, 2011,[FN4]defendant announced his production of a "world premiere play" in Florida; employment similar to work he was involved in while the parties were married. Plaintiff denied specific knowledge of the amount of income, if any, derived from defendant's play but claimed that since defendant demonstrated an ability and willingness to work by his involvement in producing the play, irrespective of the income defendant derived from that work, he should be directed to pay child support.

In opposition, defendant claimed in his papers that his current medical condition includes a brain tumor, early onset dementia/Alzheimer's Disease, and severe depression. Defendant also testified at the hearing that he is not employed due to various physical, mental and emotional disabilities. In response to plaintiff's assertion that he is holding himself out as a play producer, defendant testified that he has never worked on, or produced, a play in Florida, although he acknowledged sending the e mail announcing the play. Defendant asserted that his outstanding debts, including substantial medical bills arising from his hospitalization for psychiatric treatment at the Rockland Psychiatric Center and elsewhere in and around 2009, total in excess of $290,000.[FN5]

Neither plaintiff's submissions nor the testimony at the hearing established that defendant had commenced working. Indeed, the testimony at the hearing by defendant was that he has not, in fact, begun work, and has not worked since the parties separated. Rather, defendant asserts that the e-mail announcement of his "world premiere play" was a ruse, designed to allow him to determine if his daughter (who was included on the distribution list of the e-mail) would reveal that information to her mother; i.e., it was a test of trust. Having learned that his daughter shared the e-mail with her mother, defendant dispatched another e-mail to his daughter. The second e-mail, which can only be described as despicable and laced with vitriole, has not been considered on this motion as it is irrelevant to the issue of whether either party demonstrated extreme hardship as required by law to warrant modification of the spousal support provided for in the Stipulation and Judgment of Divorce.

Nevertheless, the Court has determined that the denial of plaintiff's application for child support was in error and must be vacated. This is so because the law is clear that in the absence of the parties' acknowledgment that they have been apprised of: (a) the provisions of the Child Support Standards Act ("CSSA") set forth in Family Court Act §413, (b) the amount that would have been awarded under the CSSA and (c) the reason for deviating from the CSSA amount, a Stipulation of Settlement that purports to waive child support is invalid and unenforceable. Tartaglia v Tartaglia 260 AD2d 628 [2nd Dept 1999]. See also Matter of Phillips v Phillips 245 AD2d 457 [2nd Dept 1997]; Matter of Bill v Bill 214 AD2d 84, 91 [2nd Dept 1995]. Although in the Stipulation of Settlement plaintiff waived any right to child support until such time as defendant obtained [*4]employment, and that waiver was later incorporated into the Judgment of Divorce, the Stipulation made no reference to the CSSA. Where a stipulation makes no reference to the CSSA, does not provide the amount that would be awarded presumptively under the Act, or fails to give the parties' reasons for deviating from the statutory formula, it cannot be upheld. Bright v Freeman, 24 AD3d 586, 588, 808 NYS2d 359 [2nd Dept 2005].

Here, neither the Stipulation of Settlement placed on the record nor the subsequent Judgment of Divorce so much as mentioned the CSSA, let alone ensured that plaintiff was aware of the presumptive amount to which she was entitled or her right to even a nominal payment of child support from defendant pursuant to its provisions. Rather, the parties' attorneys indicated on the record before Justice McGuirk that "[i]t is further understood that we are not currently setting an obligation for child support to the wife, however, if he commences working that will be something for which the wife may seek child support" (Minutes of Stipulation dated March 3, 2009 at p.13). The Stipulation was incorporated, but not merged, into the Judgment of Divorce which provided that "the defendant shall not pay child support to the plaintiff at this time due to the fact that the defendant has no income and has been in long term treatment at Rockland Psychiatric Center ..." (p.2). While, arguably, a reason is stated for plaintiff waiving her right to child support [defendant's long standing unemployment due to his hospitalization for psychiatric care], as noted above, neither the Stipulation nor the Judgment make any mention, even in passing, of the CSSA. Hence, plaintiff's waiver of support from defendant was invalid.

Thus, the Court concludes that plaintiff's application for child support should have been granted, not because she demonstrated that defendant had become gainfully employed, but rather, because the Stipulation of Settlement violated the CSSA. That this Court perpetuated plaintiff's improper waiver of child support by denying her application for same in the May 22, 2012 Decision and Order was error which this Court hereby corrects.

Although neither party adduced any direct testimony concerning child support at the hearing, the Court believes that it can make a child support award without any further proof since the parties' financial conditions, including defendant's claimed inability to work, formed the crux of the testimony concerning their respective applications to modify spousal support. Thus, the information necessary for a child support determination was before the Court and no further proof was required to make the award.

Under the CSSA, the amount of child support owed to the custodial parent is predicated on the non custodial parent's income multiplied by a percentage that is dependent on the number of children for whom support is warranted. Family Court Act §413. "Child support is determined by the parents' ability to provide for their child rather than their current economic situation." Charap v. Willett, 84 AD3d 1000, 1002 [2nd Dept 2011][internal citations omitted]. Indeed, even where a party has no income, the CSSA guidelines require that child support of at least $25 per month be awarded.

While defendant's actual earned income has been de minimus the Court can impute income to defendant. "In determining a child support obligation, a court need not rely on a party's own account of his or her finances, but may, in the exercise of its considerable discretion, impute income to a party based upon his or her employment history, future earning capacity, and educational background, and what he or she is capable of earning, based upon prevailing market conditions and prevailing salaries paid to individuals with the party's credentials in his or her chosen field." Lago [*5]v. Adrion, 93 AD3d 697, 698-99 [2nd Dept 2012][internal citations omitted]; see also Charap, supra. In the exercise of its discretion, this Court imputes income to defendant in the amount of $35,000 per year based on his educational background and past work history.

In addition, Defendant has income in the form of the spousal support payments of $10,400 per year which plaintiff makes to him. The Court hereby awards child support to plaintiff based on the combination of the income from spousal support and the income imputed to defendant for a total amount of $45,400 per year.

The child support is retroactive to the date of plaintiff's application for child support; December 1, 2011. On that date, the parties had 3 children under the age of 21. As such, under the CSSA, plaintiff was entitled to child support in an amount equal to 29% of defendant's income. Twenty nine percent (29%) of defendant's income equals $13,166 per year; $253.19 per week. Defendant owes plaintiff for the support of three (3) children for the period December 1, 2011 through February 2012 when T. reached age 21.

When T. became 21 years old, there were only two (2) minor children in plaintiff's custody for whom child support is owed by defendant. The percentage of defendant's income for two children under the CSSA is 25%. Twenty five percent (25%) of defendant's income equals $11,350 per year; $218.27 per week. Thus, defendant owes plaintiff at the rate of $218.27 from February 12, 2012 through the date of this Order.

The percentage and per week child support amount will continue and remain at 25% ($218.27 per week) until the next oldest child reaches age 21 (2015) when it will reduce to 17% ($7,718 per year or $148.42 per week) until the next child in line reaches age 21 (2021). Child support shall be payable on Friday of each week for the preceding week.

The period December 1, 2011 through and including February 12, 2012 constitutes 10 weeks and 3 days (10.42 weeks); at the rate of $253.19 the arrears equal $2,640.77. For the period February 13, 2012 through the date of this Order (September 7, 2012) (29.57 weeks); at the rate of $218.27 the arrears equal $6,464.56. Total arrears owed to plaintiff by defendant amounts to $9,095.33.

Plaintiff may take a set off for the total amount of child support arrears owed to her as against any spousal support arrears that she is required to pay to defendant as detailed below. She may continue to take a set off for the amount of child support due to her from defendant from the amount that she is obligated to pay defendant as spousal support until all arrears are satisfied.

The Parties' Application for a Modification of Maintenance

The Court turns next to the plaintiff's application for a modification or termination of the spousal support obligations set forth in the Judgment of Divorce and defendant's request for an upward modification of those obligations. Plaintiff seeks the termination or downward modification of her maintenance obligations based upon her claim that she is and has been subjected to extreme financial distress while attempting to meet her ongoing obligations, including the accumulation of more than $30,000 in credit card debt. Defendant cross-moves for an upward modification of maintenance to $635.00 per week from plaintiff.

Both of these applications are denied. Although each party has established that he/she is suffering financial difficulties, neither of them met the high legal threshold of "extreme hardship". [*6]

As agreed to by the parties, plaintiff, a school teacher, was to pay $200.00 per week to defendant commencing upon his release from the psychiatric hospital to which he was confined at the time that the Stipulation of Settlement was set forth on the record. When the parties appeared in connection with the Orders to Show Cause on February 6, 2012 the Court reduced plaintiff's weekly spousal maintenance obligation from $200.00 to $140.00, pending final adjudication of the issues.

Defendant claims in his cross motion that the $200 weekly maintenance payment from plaintiff forces him to drain his retirement funds to survive.[FN6] He continues that he has had no career or steady paycheck for the past fourteen (14) years, notwithstanding his best efforts, and is currently disabled and unable to maintain steady employment.[FN7]Defendant's rationale for seeking $635 per week is that "[o]ur children should receive 31% of plaintiff's net income,[FN8]or about $50,000 per year. The remainder of plaintiff's net income should be apportioned two-thirds to plaintiff and one-third to me, which is about $33,000 annually. This will provide for our children's support, while allowing me to meet my reasonable needs."[FN9]

The Domestic Relations Law provides that a party seeking to modify an existing spousal support obligation must demonstrate that continuation of that obligation imposes an extreme hardship on the payor. "Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or decree incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event, the decree or order as modified shall supercede the terms of the prior agreement and decree for such period of time and under such circumstances as the court shall determine." DRL 236(B)(9)(b) (emphasis added). Modification of maintenance obligations deriving from a settlement agreement that does not merge into the judgment of divorce generally requires a showing of "extreme hardship". See Martin v Martin 80 AD3d 579[2nd Dept 2011]; see also Schlakman v Schlakman 38 AD3d 640 [2nd Dept 2007]. The burden is on the movant to demonstrate that the continued enforcement of that obligation would create an extreme hardship'. Lewis v. Lewis, 43 AD3d 462, 463 [2nd Dept 2007].

This Court previously held that plaintiff demonstrated, prima facie, that attempting to meet her ongoing financial obligations, including those of supporting a family to which defendant provides nothing, caused her to be exposed to a financial hardship. Simultaneously, in connection with her application for child support, she presented some evidence to support her claim that defendant was working and/or had shown a capacity to work (the e-mail). As such, the Court ordered the reduction in maintenance payments set forth above and subsequently directed the recently concluded hearing.

The Court notes that not only is "extreme hardship" not defined by statute; there is a paucity [*7]of case law which attempts to define it. Rather, it appears that decisional law has determined that, like the late Supreme Court Justice Potter Stewart who knew pornography when he saw it but declined to define it,[FN10]judges deciding applications to modify or terminate spousal support post judgment know extreme hardship when they see it. As one court recently stated: "what constitutes extreme hardship is a fact-specific inquiry that depends on the overall financial condition of the moving party." Platt v Platt 2012 Slip Op 51583 (U) [Dollinger, J. August 22, 2012].

In the case at bar, although plaintiff contends that she has been forced to expend virtually all of her net share of the proceeds from the sale of the marital residence and has taken on a large, unmanageable debt load in her effort to meet her obligations, she still falls short of demonstrating extreme hardship. The Court is not unsympathetic to plaintiff's situation given her extraordinary efforts to meet not only her financial obligations, but to ensure that those of her emancipated children are also met until they obtain meaningful employment. Unfortunately, plaintiff's voluntary undertaking to pay her older children's obligations is legally irrelevant to the issues presented here. Moreover, plaintiff possesses substantial assets that she could, albeit with potential tax penalties, if so inclined, access to ease her load. In denying plaintiff's application, the Court has considered plaintiff's current employment status, income and ability to meet her needs as required by case law. Pintus v Pintus 104 AD2d 866 [2nd Dept 1984].

The Court notes that, unlike so many other matrimonial litigants who elect to effect self help and simply cease paying their obligations, plaintiff persisted in meeting her obligations at great cost to her own financial well being. This laudable effort should not go unrecognized and speaks volumes for plaintiff's bona fide concerns about the amount of money she pays defendant and her inability to sustain those efforts. Nevertheless, the legal burden of "extreme hardship" is extremely difficult to achieve, particularly where one is earning in excess of one hundred thousand dollars ($100,000) per year.

Defendant, too, failed to demonstrate extreme hardship. Defendant, age 57, has a bachelor's degree from the University of Notre Dame, (BA), and a graduate degree obtained, apparently via Dartmouth, Columbia, Harvard, Yale & CUNY (MA-TSS).[FN11]He states that he has not worked since his discharge from the psychiatric hospital, contending that he is disabled as a result of various ailments. No medical proof of any disability: mental, emotional or physical, was provided at the hearing. No physician was called to testify and no medical records were entered.[FN12]Simply put, defendant has failed to "adequately establish the nature and extent of his medical condition, which he characterizes as a permanent disability." See Praeger v Praeger, 162 AD2d 671, 673, 557 NYS2d 394 [2nd Dept 1990] (Cf. V.P v C.P, 936 NYS2d 62 [NY Sup. Ct. 2011], where a physician was called to testify as to the medical condition of the husband who was applying for the modification.) [*8]

Defendant testified that he has applied for employment with over 7000 companies and 4,000 schools; without success. Perhaps his greatest impediment to finding work is that he testified that each time he applies for a job, he makes certain to notify prospective employers of his psychiatric history. Even so, he appears surprised that none have offered him a position! A review of the resume he sends to prospective employers leaves little doubt as to why he is unable to find work. Aside from the absence of any contact information being included on the resume, [hopefully, defendant sends a cover letter with his resume] one wonders what employer would consider hiring an individual whose resume begins as follows:

"1) 1992-2008[FN13]: Stay-At-Home Dad (SAHD). As father of five beautiful children, my wife has been the chief breadwinner (public school teacher). We determined that having one parent (myself) home full time was best for raising such a large family. Consequently, ALL OF MY CAREER WORK/ASPIRATIONS from 1992 to the present time (March 2008) was subordinate to my wife's career, and my work/career achievements were accomplished around' the primary schedules of

-(a) my children's educational, social, athletic, religious, civic and cultural schedules; and

-(b) my wife's full time commitment to her career, which paid all the family bills."[FN14]

Defendant testified that he is fearful of becoming homeless, so he has resorted to eating at free kitchens and churches on occasion to save money. This despite the fact that he has money in retirement accounts. Defendant testified that he took his share of the proceeds of the sale of the marital residence and purchased a mobile home in Florida which he described as "moldy" and in dire need of repair. The balance of the net proceeds, he claims, has been spent supporting himself. Defendant testified that although he lives in the mobile home, because he believes that he cannot afford to have repairs made, the home is without running water and he resorts to using a toilet and shower at a gym where he has a membership.

Despite defendant's protestations of poverty, plaintiff produced a photograph[FN15](taken by an investigator[FN16]who she hired), which showed not only defendant's home but also a late model Corvette in the driveway along with another vehicle, a Chrysler PT Cruiser which plaintiff bought for defendant at some time in the past. Defendant admitted that the Corvette (model year 2001) was his, purchased for $10,000 in November 2009 with a portion of the net proceeds from the sale of the marital residence. However, he contended that he sold it in November 2011 for $50 when it broke down and he could not afford to repair it. The Court finds this testimony to be incredible.

Finally, while he claims that he is borderline destitute, defendant testified that he has drawn approximately $35,000 from his retirement accounts to pay a portion of his counsel's fees. This [*9]Court will refrain from commenting on the reasonableness of the fees charged by counsel to defendant. In any event, having bargained for plaintiff to pay him $200 per week and having failed to prove that such amount was inequitable at the time of the settlement, defendant cannot now be heard to complain that it is inadequate to meet his needs. Indeed, defendant admitted that he has approximately $28,000- $30,000 remaining in various accounts. Again, defendant ignores the fact that he agreed to the $200 per week at a time when his employment situation was no different than it is now. He was then, and is now, unemployed.

Consequently, based on the evidence adduced at the hearing, and the submissions previously made, the Court denies defendant's application for an upward modification of spousal support. However, in light of the Court's denial of plaintiff's motion for a decrease in sposual support, the reduction granted by this Court pending hearing and determination must be reversed, retroactively to the date of reduction. Thus, plaintiff is obligated to pay to defendant the sum of $60 per week for the period January 12, 2012 through September 7, 2012 (34.14 weeks). This amounts to $2,048. As noted above, plaintiff may take a deduction from the child support arrears owed to her and awarded hereunder against these monies.

At the hearing, plaintiff stipulated that no payments for spousal support were made by her for the period from August 28, 2009 to January 18, 2010; a period of 20.43 weeks. Plaintiff asserts, and the Court finds credible, that she was unaware that defendant had been released from the psychiatric hospital and, therefore, was similarly unaware that her obligation to pay spousal support began. The Court's calculation of the amount of spousal support arrears for this period is $4,086. Plaintiff is directed to pay these spousal maintenance arrears, less any credits allotted for the child support awarded to her, to defendant.

Defendant's Contempt Application

Defendant sought an order holding plaintiff in contempt based upon her alleged failure to pay spousal maintenance as set forth in the parties' Stipulation of Settlement, as incorporated into the July 8, 2009 Judgment of Divorce. Defendant contended that because plaintiff failed to make payments to him for a substantial period of time after his release[FN17]from the psychiatric hospital and because plaintiff had been sending the spousal support payments late, she should be held in contempt.

The Court denies the defendant's contempt application since there has been no clear showing of wilfulness on plaintiff's part. Rather, like a great many other aspects of defendant's life, it appears that defendant's non-receipt of spousal payments directly attributable to his own failure to advise plaintiff of his release from the psychiatric hospital. Simply put, plaintiff is not clairvoyant and should not and cannot be held to task for defendant or his counsel's failures to advise her of his release from the hospital. Hence, while the Court has found defendant to be entitled to the payments, the arrears are to be paid without interest.

To the extent that defendant's contempt application is predicated on his assertion that plaintiff routinely and customarily made the weekly spousal support payments "late"; the Court denies the [*10]application. Although defendant contends that payments are to be made on Monday of each week[FN18]and that "plaintiff's payments are always late, not just days but months late,"[FN19]the Judgment of Divorce is completely silent as to what day of the week plaintiff is to tender payment. Rather, it provides only that "...plaintiff shall pay spousal maintenance to the defendant in the amount of $200.00 per week ..." (p.2). No specific day of the week on which plaintiff is to pay defendant is set forth in either the Stipulation or the Judgment.

Moreover, the proof at the hearing was clear that after defendant moved for contempt, plaintiff began obtaining proof of mailing the requisite payment to her ex-husband from the Post Office each week; indeed, she provided proof of mailing in the form of United States Post office delivery receipts[FN20]for each weekly payment. In addition, evidence was adduced that the checks written by plaintiff to defendant prior to his contempt application were written on a timely basis.[FN21]The Court has no reason to believe that plaintiff did not mail them in a timely fashion, defendant's assertions, notwithstanding. As a result, the Court is convinced, accepts as truthful and so finds, that it was not that plaintiff dispatched the checks in an untimely fashion; but, rather that defendant did not negotiate them in a timely fashion. That defendant chose to deposit the checks as a group, en mass, rather than weekly as received is a problem of his own making.

" To sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and that the person alleged to have violated that order had actual knowledge of its terms. In sum, it must appear with reasonable certainty that the order has been knowingly disobeyed." Graham v. Graham, 152 AD2d 653 [2d Dept 1989][internal citations omitted].

Here, there was no clear mandate as to when the payments were to be made. Even if there were, there was no "knowing disobedience". As stated above, the Court accepts plaintiff's explanation that defendant failed to alert her or her counsel that he had been released from the psychiatric hospital. Hence, she was unaware of the obligation to pay the monies due. As noted above, the Court has determined that defendant is entitled to spousal support in the sum of $4,086. Such determination does not, however, warrant a finding of contempt.

In sum, defendant's application for contempt is wholly lacking in merit and must be denied.

Defendant's Request for Counsel Fees and Money Judgment

Defendant's request for attorney's fees is denied in its entirety. Defendant's applications have almost universally been rejected hereunder. Indeed, as noted, the only portion of defendant's application that is remotely meritorious is his application for a judgment for unpaid support for the period from August 28, 2009 through January 10, 2010. As noted above, plaintiff's failure to pay defendant the requisite spousal support was the result of defendant's failure to advise her that he had [*11]been released from in patient psychiatric care; not the result of plaintiff's wilfulness. In the absence of a showing of wilfulness defendant is not automatically entitled to legal fees under DRL §237(c). See Markhoff v Markhoff 225 AD2d 1000, lv denied 88NY2d 807 [1996].

Thus, in the exercise of the Court's discretion the Court denies defendant's application for legal fees.

Recap

The Court has found that plaintiff is entitled to collect the sum of $9,095.33 from defendant, representing child support from the date of her application to the date of this decision. The Court has also found that defendant is entitled to collect the sum of $6,134 from plaintiff, representing spousal support for the period August 28, 2009 to January 28, 2010 and the restoration of spousal support to the amount of $200 per week from the sum of $140 per week awarded during the pendency of the subject applications. Accordingly, defendant owes plaintiff the net sum of $2,961.33 as well as ongoing child support as set forth above. Plaintiff is hereby permitted to reduce the amount of spousal support which she is obliged to pay to defendant until all arrears are satisfied.

Going forward, plaintiff is obligated to pay spousal support to defendant in the sum of $200 per week and defendant is obligated to pay child support to plaintiff in the sum of $218.27 per week until June 25, 2015 when it will reduce to $148.42 per week until C. reaches age 21 (2021). Plaintiff may continue to take credit against the spousal support obligation by the amount of child support prior to making any payment to defendant.

The parties stipulated that to the extent that plaintiff has an obligation to pay any spousal support to defendant [after deduction (or termination) of the child support and arrears hereunder] future payments would be made by electronic transfer. The Court hereby directs that any spousal support payments due to defendant from plaintiff be made by electronic transfer on Friday of each week for the week preceding. Given that there is a permanent Order of Protection in place whereby defendant is prohibited from knowing plaintiff's home address, the Court hereby directs that any child support payments due to plaintiff from defendant shall be made by electronic transfer on Friday of each week for the week preceding. Unless counsel otherwise agree, within thirty (30) days hereof, plaintiff's counsel is to advise defendant's counsel of the requisite wire instructions so that defendant can comply with this directive. Once there is a net due to defendant, a similar method for establishing a wire transfer account for defendant is to be established. It shall be each party's obligation to notify her/his counsel in the event of a change in the banking institution so that counsel can, in turn, notify the other counsel who is to notify his client accordingly.

All other prayers for relief are denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: Goshen, New YorkE N T E R

September 7, 2012

__________________________

HON. PAUL I. MARX, J.S.C. Footnotes

Footnote 1:Plaintiff's Order to Show Cause was signed by the Hon. Elaine Slobod on December 1, 2011.

Footnote 2:Defendant's Order to Show Cause was signed by me on January 31, 2012.

Footnote 3:As of March 9, 2009, the date of the Stipulation of Settlement, the eldest child was already over the age of 21. Hence, defendant had no child support obligation for her. The other children were 20, 18, 15 and 8 respectively.

Footnote 4:Plaintiff's exhibit 12 in evidence.

Footnote 5:Though defendant testified to owing these monies, it does not appear that the medical providers have taken any legal action against him to recover same and it certainly does not appear that he is making any voluntary payments towards the outstanding balance.

Footnote 6: Jan. 11. 2012 Aff. of Christopher S. at ¶44.

Footnote 7:Id. at ¶¶ 45-46.

Footnote 8:A recognition of the percentages required by the Child Support Guidelines.

Footnote 9:Id at ¶ 46.

Footnote 10:Jacobellis v Ohio 378 US 184 [1964].

Footnote 11:As stated on a business card he gave to an investigator hired by plaintiff. (Exhibit 10)

Footnote 12:His counsel attempted to lay a foundation for a letter from a medical provider by having plaintiff testify that he received the letter and the hearsay objection was sustained. Counsel then attempted to "refresh the witness' recollection" with the letter but, again, the objection to the document was sustained.

Footnote 13:It is now 2012, yet defendant persists in sending resumes that refer to his last "employment" as a SAHD in 2008.

Footnote 14:Plaintiff's exhibit 11.

Footnote 15:Defendant's Exhibit K.

Footnote 16:As noted above, the investigator also secured a business card from defendant. The business card (Exhibit 10) reveals that defendant holds himself out as an "Investigative Reporter" for the Pensacola Voice; "The best unknown American Columnist (125,000 readers)."

Footnote 17:He referred to his release from the psychiatric hospital as an "escape".

Footnote 18:January 11, 2012 affidavit of Christopher S. at ¶32.

Footnote 19:Id. at ¶ 32.

Footnote 20:Plaintiff testified that after defendant brought the contempt proceeding she began sending checks to defendant directly from the post office (at additional cost) in order to ensure that she could prove, as she did, that her payments were made timely.

Footnote 21:Plaintiff's exhibit 2, the carbon copies of the checks she wrote to defendant.