Dinozzi v Dinozzi

[*1] Dinozzi v Dinozzi 2015 NY Slip Op 51828(U) Decided on December 10, 2015 Supreme Court, Suffolk County Tarantino Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2015
Supreme Court, Suffolk County

Nicholas Dinozzi, Plaintiff(s)

against

Anna Dinozzi, Defendant(s)



30442/2010



Robert J. DelCol Esq

Attorney for Plaintiff

1038 West Jericho Tpke

Smithtown NY 11787

Kenneth Molloy Esq.

Attorney for Defendant

320 Carleton Ave Ste 6800

Central Islip NY 11722
Andrew G. Tarantino Jr., J.

By Show Cause Order, dated May 22, 2014, Plaintiff, former Husband, sought an Order to downward modify a Judgment of Divorce to the extent that Plaintiff's child support obligations be brought into accordance with the Child Support Standards Act, and for an Order reducing Plaintiff's spousal obligations on the grounds that Defendant is now capable of part-time work and that Plaintiff's income has declined by 40%. On March 11, 2013, the Family Court dismissed Plaintiff's application to modify his support obligation upon an adjudication that Plaintiff failed to prove a prima facie case. Additionally, in this action, Plaintiff sought an Order of Contempt against Defendant upon Defendant's failure to sell the marital premises when the youngest child turned age 18 years. This Court conducted a Hearing over two days, April 7, 2015, and May 1, 2015. The Defendant did not testify, but was represented by counsel at the [*2]Hearing. Only the Plaintiff proffered testimony. Counsel for both parties were permitted to file post-Hearing statements in June 2015.

TESTIMONY and EVIDENCE

A review of prior Orders, and the Settlement Agreement entered into by the parties, revealed that Plaintiff was previously married to Defendant and they have two children: N. born 1987, and J., born 1995. As part of their divorce, on April 28, 2008, the parties entered into an agreement regarding custody, child support, and distribution of property. The issue of spousal maintenance was left for trial. Following that trial, Plaintiff was directed to pay $2,500.00 per month spousal maintenance. Child support was to be calculated pursuant to the Child Support Standards Act as set forth in the settlement agreement. That provision stated:

Pursuant to the settlement agreement, section VI (3) "the father, during his lifetime, shall pay to the mother, in advance, as and for the support of the parties unemancipated issue the sum of [sic - left blank] , pro rated, if applicable, commencing on the day maintenance commences and continuing monthly until J.'s emancipation, as the emancipation is defined.

The 2008 stipulation of settlement reflected Plaintiff's salary as $135,000.00. The 2009 Amended Judgment of Divorce reflected Plaintiff's income as $155,000.00 which was the income used to calculate the child support. Together with the child support, calculated in April 2009 as $2,437.00 per month, Plaintiff's current combined child support and spousal maintenance is $4,937.00 per month ($2,500.00 per month of that for spousal maintenance). According to the Trial Court's decision, the following expenses and needs of Defendant were used to calculate the amount of spousal maintenance: $1,620.00 mortgage and property tax, $400.00 home equity loan, $701.00 for utilities, and $155.00 household maintenance, and some additional expenses delineated by that court. Pursuant to the Trial Court, Defendant was responsible for payment of the mortgage on the premises, and each party was thereafter responsible for his/her respective debts and attorney fees. The settlement agreement provided that:

The [marital premises] shall be sold when the youngest son, J.,

turn [sic] 18 years old.

At this Hearing, Plaintiff testified how he has been an employee of Cablevision for 14 years working as a salesman in the Internet Services Department. He testified that his compensation was based not on a percentage of sales, but on the number of installations he secured. Starting with a base salary of $40,000.00 per year, the commission structure in 2011 increased the salary by $300.00 for each installation completed. In 2011, based upon installations, Plaintiff's salary was $110,523.00. In 2012, his salary decreased to $88,930.00, and in 2013 his salary decreased to $86,848.00. Plaintiff claimed that it was in 2013 that he began falling behind in maintenance and child support payments. He currently lives in a private home paying $450.00 per month rent and contributes to property maintenance. He testified that in 2014 [*3]he tried to increase his income by working longer hours, and working Sundays. By doing so, in 2014 his income was $103,531.00. To accomplish this increase in income, Plaintiff explained that he worked during vacation times, and the company helped increase sales by adding customer incentives. Although Plaintiff 's salary increased that year, he stated that aggressive marketing by competitors dramatically impacted his ability to procure internet installations. He added that he also paid for his son's schooling which cost $8,000.00 per year, and paid the child's cell phone bills and car insurance. He claims to have explored other careers including pharmaceutical sales.

The marital premises were sold on January 9, 2015 for $290,000.00. From the proceeds, the mortgages were satisfied, together with Plaintiff's child support arrears, and other accumulated debts of the parties. The HUD-1 statement showed payments to Citibank, Marine Midland, and Capital One, all of which were Defendant's debts according to Plaintiff.

ANALYSIS

A matrimonial action in Supreme Court does not end upon entry of final judgment but remains alive as to matters of support, alimony and child custody as circumstances of parties may subsequently require in the interest of justice. M. v M., 70 Misc 2d 974, 335 NYS2d 207 (Fam.Ct., Schenectady County 1972). While a support order may be modified nunc pro tunc to the date of the application for modification, a court may not alter a support obligation which matured and became due and owing prior to the date of such application. Conklin v Conklin, 90 AD2d 817, 455 N.Y.S.2d 842 (2d Dep't 1982).

The terms of a separation agreement incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. Gravlin v. Ruppert, 98 NY2d 1770 N.E.2d 561743 N.Y.S.2d 773 (NY 2002). The standards for modifying support Orders and agreements are set forth in both statutory and decisional law.

.

The Domestic Relations Law (DRL) provides:

Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance or termination of child support awarded pursuant to section two hundred forty of this article, including financial hardship. Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or judgment 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 judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines. The court shall not reduce or annul any arrears of maintenance which have been reduced to final judgment pursuant to section two hundred forty-four of this article. No other arrears of maintenance which have accrued prior to the making of such application shall be subject to modification or annulment unless the [*4]defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears and the facts and circumstances constituting good cause are set forth in a written memorandum of decision. Such modification may increase maintenance nunc pro tunc as of the date of application based on newly discovered evidence. Any retroactive amount of maintenance due shall, except as provided for herein, be paid in one sum or periodic sums, as the court directs, taking into account any temporary or partial payments which have been made. The provisions of this subdivision shall not apply to a separation agreement made prior to the effective date of this part. See, NY DRL §236(b)(1).

A party seeking to change support provisions contained in the stipulation of settlement incorporated but not merged into a judgment of divorce has the burden of establishing substantial, unanticipated, and unreasonable change in circumstances. Schlakman v Schlakman, 66 AD3d 786, 886 N.Y.S.2d 758 (2d Dep't 2009), leave to appeal denied, 14 NY3d 701, 898 N.Y.S.2d 96 (NY) ; DiGiorgi v Buda, 26 AD3d 434, 809 N.Y.S.2d 565 (2d Dep't 2006); see also, Elegante v Elegante, 77 AD3d 663, 908 N.Y.S.2d 267 (2d Dep't 2010). Where a party's change in income is not within that party's control, downward modification of child support obligation may be appropriate. Cordell v Cordell, 267 AD2d 1049, 701 N.Y.S.2d 562 (4th Dep't 1999). The burden is on a father seeking downward modification of child support obligation on the basis of a job loss to show that he used his best efforts to obtain employment commensurate with his qualifications and experience after losing his job. Ripa v Ripa, 61 AD3d 766, 877 N.Y.S.2d 383 (2d Dep't 2009). In determining if there is a substantial change in circumstances to justify a downward modification of a spousal support obligation, the change is measured by comparing the payor's financial circumstances at the time of the motion for downward modification and at the time of the divorce or the time when the order sought to be modified was made. Sannuto v Sannuto, 21 AD3d 901, 800 N.Y.S.2d 601 (2d Dep't 2005).

Parties are reminded that the task of furnishing evidence rests solely upon the parties, neither the judge nor the jury having any obligation or duty in this regard. Fisch on New York Evidence, Second Edition, §1087, Lond Publications 1977/2008. The Court may not consider or speculate on matters not in evidence or matters outside the case. See, Pattern Jury Instruction, §1:25A. Although the Defendant did not personally testify at the Hearing, her attorney participated by cross-examining Plaintiff.

Modification of Spousal Maintenance

The DRL provides that the court may modify any prior order or judgment as to maintenance, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance. Defendant's maintenance award, made by the Trial Court, was based upon Defendant's expenses as follows: $2,020.00 per month for mortgage and property taxes, $701.00 for utilities, and $155.00 per month for other maintenance. However, the marital premises was sold in January 2015, which the Court finds to be a substantial change in circumstances. Justice cannot require Plaintiff to continue paying support for factors which no longer exist, but which were used to support the determination of support. Unfortunately, [*5]Defendant did not testify at the Hearing, nor did her counsel proffer any evidence to demonstrate Defendant's current expenses or needs. The Court was deprived of any basis upon which spousal maintenance should be continued, and it is improper for the Court to speculate on such matters. Thus, even if the Court continued some form of spousal maintenance, it was deprived of any facts upon which the amount of support could be calculated. Accordingly, that portion of the Judgment of Divorce awarding Defendant spousal maintenance is hereby terminated effective January 9, 2015, without prejudice to the Defendant to make application based upon new facts as law may permit.

Child Support

The settlement agreement was dated April 28, 2008, when J. was age 20 years (he would have turned 21 years in 2008), and N. was age 12 years. That agreement reflected the Child Support Standards Act support percentage of 25% for two children, and relied on Plaintiff's salary of $135,000.00. However, the Judgment of Divorce, granted April 6, 2009, set forth the support percentage of 25% after J. was emancipated. No evidence was provided to the Court revealing whether J. had attended full-time college which would have extended the emancipation event to age 22 years. Notwithstanding this lack of evidence, this Court can only modify the Judgment of Divorce as of the date of this application, which was May 22, 2014. Accordingly, as of May 22, 2014, and continuing until the youngest child is emancipated, Plaintiff's child support for the child is to be recalculated using 17% as the percentage of income for support, and modified using the formulas set forth by the Child Support Standards Act, using Plaintiff's 2014 income of $103,531.00.

Adjustment of Proceeds of sale of marital premises

Plaintiff seeks the following reapportionment of the distribution of the sales proceeds from the marital premises:

Credit to Plaintiff

Plaintiff's payment for storage POD for Defendant$500.00

Defendant's attorney (Mr. C) $33,000.0016,500.00

Defendant's credit card ($29,500.00)14,750.00

Mortgage arrears payment paid by Plaintiff 15,000.0015,000.00

Attorney's fees ($7,500.00)7,500.00

$54,250.00

Firstly, except for the $7,500.00 in unexplained attorney's fees, the Court grants Plaintiff the above credits. The Court scoured the documents before it and only found a provision in the settlement agreement whereby each party was responsible for his/her respective counsel fees. If there was anything to the contrary it was not provided to the Court. Secondly, the agreement clearly stated that Defendant was responsible for the mortgage payments as long as Plaintiff was current in his support payments. The arrears, advanced by Plaintiff on Defendant's behalf, accrued while Plaintiff was current in his support payments. Lastly, and similarly, the only provision this Court identified regarding credit card debt was that each party was responsible for his/her respective debts. And, again, no document was provided to the Court to the contrary. Accordingly, Plaintiff is entitled to a credit of $46,750.00 which shall not be a credit to reduce child support.

Contempt

The basis of Plaintiff's application for Contempt was Defendant's failure to sell the marital premises when the youngest child turned 18 years. That child turned 18 years on July 29, 2013. In light of the premises ultimately being sold, and the above reapportionment of proceeds set forth above, the Court does not find a Contempt against Defendant.

Based upon the above, it is hereby

ADJUDGED that Plaintiff has established a substantial change in circumstances sufficient to modify his spousal support obligation; and it is further

ADJUDGED that Plaintiff has established a change in circumstances sufficient to modify his child support obligation; and it is further

ADJUDGED that Plaintiff has failed to prove a Contempt against Defendant; and it is further

ORDERED that Plaintiff's spousal support obligation is hereby modified by terminating spousal maintenance effective January 9, 2015, and that Plaintiff shall be granted a credit for any spousal maintenance paid to Defendant since that date; and it is further

ORDERED that Plaintiff's child support obligation is hereby modified by reducing the child support percentage from 25% to 17%, and using the formulas set forth in the Child Support [*6]Standards Act to calculate Plaintiff's share of child support based upon his 2014 income of $103,531.00; and it is further

ADJUDGED and ORDERED that Plaintiff is granted a credit against spousal maintenance in the amount of $46,750.00, said credit retroactively applied to May 22, 2014, and said credit to be used to reduce only those spousal support arrears that have accrued since May 22, 2014, and the balance of such credit to be applied against any future spousal support award granted to Defendant; and it is further

ORDERED that Plaintiff's motion for an Order of Contempt is denied; and it is further

ORDERED that unless modified by the above, all other provisions of the Judgment of Divorce and Settlement Agreement not inconsistent with the above shall remain in full force and effect.

Submit Judgment.

Dated: December 10, 2015

__________________________________

Andrew G. Tarantino, Jr.

A.J.S.C.