DaSilva & Hilowitz, LLP v Style
Annotate this CaseDecided on April 6, 2011
County Court, Suffolk County
DaSilva & Hilowitz, LLP, Plaintiff(s)
against
Cynthia Style and JERRY STYLE, Defendant(s).
2977/05
Thomas K. Campagna, PC
Attorney for Jerry Style
888 Veterans Highway Ste 200
Hauppauge NY 11788
631-737-8200
James Hagney Esq
Reynolds Caronia Gianelli et al
Attorneys for Cynthia Style
35 Arkay Dr Ste 200
Hauppauge NY 11788
631-231-1199
Andrew G. Tarantino Jr., J.
PROCEDURAL HISTORY
This action for attorney's fees was commenced by Plaintiff against Defendants who are former Husband and Wife [hereafter referred to as Husband or Wife]. Plaintiff was granted summary judgment against both Defendants in 2003. The cross-claims filed by each Defendant survived and were transferred to this Court, pursuant to Civ. Pract. Law & Rules §325(d) for trial. The parties consented to a Court determination based upon stipulated facts, and waived placing any testimony on the record. Thirteen (13) documents were placed into evidence upon which this determination is based. [*2]
FACTS
The Husband and Wife appeared on a custody proceeding in NY Family Court, Suffolk County, on December 2, 1997. Each was represented by counsel, the Wife was represented then by Plaintiff DaSilva. The Husband's attorney placed a stipulation of settlement on the record as follows: "With respect to the fees of Mr. DaSilva and the fees of Mr. Kim, and the fees of myself, Judge, as we discussed the last time, in a degree [sic] by Mr. Style, that said fee will be paid from a re-financing of the marital premises at [intentionally omitted] [...] "" [...] [the Law Guardian's] fees were to be paid first, then the fees of Mr. DaSilva and me which are to be paid on a dollar for dollar basis [...]""[...] if there was insufficient money to pay all the fees of Mr. DaSilva and me, then any unpaid balances would be the responsibility of Mr. Style thereafter."
DaSilva continued: "[...] there is an ongoing Order from Judge [Dounias] which reflected I'm to be paid by Mr. Style period. Not contingent upon anything else."
That Court confirmed: "The obligation to counsel fees are not contingent on the re-finance."
The Husband and Wife each acknowledged in open court that they heard what was placed on the record, understood it, and agreed to be bound by it.
In August 2000, NY Supreme Court, Suffolk County, Baisley, J., in another action, issued an Order directing the Husband to transfer title to the marital premises to the Wife so she could refinance the premises and avoid a foreclosure. The Husband failed to comply with the prior court orders directing that he pay the mortgage. In October 2000, the transfer of title was recorded. The action was settled by written stipulation in December 2000.
Although the parties were divorced in New Jersey in 1998, a December 2000 Stipulation of Settlement resolved all outstanding issues. The relevant portions of that Settlement are as follows: "the Husband [and Wife] intend by this agreement to discharge, settle and satisfy any and all claims and rights to money and property of any nature [he or she] may have or heretofore had against the [other], and [each] releases and discharges the [other] from all such claims and rights forever, except as provided herein."[*3]"this Agreement shall effect a final, complete and irrevocable settlement with respect to all property and financial claims that either of the parties may now or at any time hereafter have against the other.""The Husband hereby waives all right, title and interest, he may have in the marital residence in consideration of the Wife waiving her claims and interest in and to all support arrears due and owing the Wife by the Husband under the pendente lite Orders of the Supreme Court of Suffolk County.""It is acknowledged that the support arrears now due and owing to the Wife by the Husband, which include child support, maintenance, mortgage/home equity loan, and counsel fee arrears, approximate the sum of $80,000.00.""Subject to the provisions of this Agreement, each party has remised, released and forever discharged and by these presents does for himself or herself and his or her heirs, [...] remise, release and forever discharge the other of and from all cause or causes of action [...] in law or equity which either of the parties heretofore ever had, or now has, against the other [...]""The fact that a particular debt of the Husband is not listed on schedule A will have no effect whatsoever on the Husband's obligation to pay said debt and to indemnify and hold the Wife harmless from same."
In March 2003, DaSilva commenced this action in NY Supreme Court, Nassau County, against the Husband and Wife for legal fees. That action against the Wife was based upon the retainer agreement between her and DaSilva. The action against the Husband was based upon the 1997 Family Court stipulation that the Husband was to pay all legal fees. DaSilva alleged that the Husband paid his attorney in full despite the Family Court stipulation wherein he was to pay DaSilva and his attorney on a dollar for dollar basis. In his answer, the Husband denied the allegations, and filed a cross-claim against the Wife. The Husband, referring to the 2000 Stipulation of Settlement, said that the Wife represented that there was no debt for which she was liable other than those on Schedule "A," and DaSilva's judgment was not listed. In her answer, the Wife also denied the allegations in DaSilva's complaint, and denied the allegations in the Husband's cross-claim. The Wife cross-claimed against the Husband relying upon the 1997stipulation wherein the Husband agreed to be solely responsible for DaSilva's legal fees. That Court, in March 2004, granted summary judgment in favor of DaSilva and against the Husband and Wife in the amount of $52,504.01. The Husband and Wife then each then moved for default judgments against the other. In its December 2004 order, the motions were denied and that Court stated: "The July 30, 2004, judgment has not been paid by either co-defendant."
The cross-claims was transferred to this Court for determination.
ANALYSIS
This Court cannot act as an appellate court to review the propriety of the decision and judgment of another court. This Court was provided with a 1997 Family Court Order, a So-Ordered 2000 Stipulation of Settlement, and a 2003 money judgment against the Defendants. No evidence was submitted that any of these Orders or Judgments were appealed or satisfied.
Where a spouse accepts payment in full satisfaction of arrears that was then due, that spouse waives their right to collect those amounts through alternative means. Horowitz v Horowitz, 40 AD3d 640, 835 N.Y.S.2d 394 (2d Dep't 2007). Where a husband and wife execute a stipulation of settlement regarding a judgment and husband paid the wife the agreed upon sum, and the wife filed a satisfaction of judgment, the husband's obligations under the judgment are extinguished. Samuel v Samuel, 69 AD3d 835, 893 N.Y.S.2d 250 (2d Dep't 2010). Stipulation entered into by former husband and wife did not waive husband's interest, as designated beneficiary, in wife's savings plan; stipulation did not expressly reference plan, and its general release language was insufficient to effectuate valid waiver. Smith v. Pathmark Stores, Inc, 57 AD3d 759, 869 N.Y.S.2d 584 (2 Dep't, 2008). The only claims discharged by a release are those in existence prior to its effective date; any claims arising at the time a general release is given, and claims that arise or mature subsequent to that time, are not extinguished by the release unless they are expressly embraced within the instrument or fall within the fair import of its terms. NY Jur, Compromise, §108. In Samuel, the stipulation of settlement provided that the wife accepted payment in full satisfaction of any and all arrears "pursuant to the ... pendente lite Order."The wife then filed a satisfaction of judgment. In Horowitz, during the enforcement proceeding the wife accepted payment in satisfaction of the accrued arrears. In each of those cases, the husbands were relieved of further obligations. Although the Husband in the instant proceeding wishes the same result, the facts in Samuels and Horowitz are significantly dissimilar.
First, the instant action for attorney's fees was commenced by Attorney DaSilva three years after the Stipulation of Settlement. Neither party could have contemplated this action because it was not between themselves. Thus, the Wife's claim for indemnification was not extinguished by the general release.
Next, the Husband's obligation did not flow from the divorce proceeding settled by stipulation. It was a Court Order issued in Family Court in 1997. That Order was not appealed, and remains in full force and effect. If the parties had intended the general release to satisfy the Husband's Family Court obligation, language, such as that used in Horowitz, should have been set forth in the release. The parties did reference satisfaction of the pendente lite Order, and withdrawal of the Husband's appeal, as bargained for in that action. Because no mention is made of the Family Court Order, the release could not be interpreted as extinguishing the Husband's [*4]obligation.
Next, the Court equates the Wife's status as beneficiary of the Family Court Order just as the husband attained in Smith. The general release did not extinguish that husband's status as beneficiary of the account. Similarly, the release herein did not extinguish the Wife's status as beneficiary under the Family Court Order.
The existence of that continuing Family Court obligation is supported by the 2003 award of attorney's fees against the Husband. If the general release was intended to extinguish the Husband's Family Court obligation, the Husband should have raised that defense in the summary judgment proceeding, or in an appeal of that judgment. He did not. But for the existence of the Family Court obligation, and absent the general release, DaSilva's action for attorney's fees could only have succeeded against the Wife under the terms of her retainer agreement.
The Husband's argument that the Wife did not list the attorney's fees as a debt on the Stipulation of Settlement has no bearing on this action. The Wife did not need to list that debt because it became the Husband's debt in the Family Court proceeding. Although the Husband did not list that debt in his Schedule A, it had " no effect whatsoever on the Husband's obligation to pay said debt and to indemnify and hold the Wife harmless from same." [See, Stipulation of Settlement]
The Wife seeks the authority to execute the 2003 judgment against the Husband for the attorney's fees he never paid. That judgment remains a lien on her property and encumbers her title. Why Attorney DaSilva is not executing that judgment remains unanswered. But, this Court see no alternative but to grant the Wife the relief she seeks. To impose the burden on the wife to pay the judgment first defies all bounds of decency under these facts and circumstances.
Based upon the documents, there is evidence supporting the impression that the Husband has been on a 13-year course of creating economic hardship for the Wife. In 1997, he was ordered to pay the Wife's attorney's fees. He did not. He also was ordered to pay the mortgage. He did not. He was then Ordered pendente lite to pay the mortgage. He did not. He was then Ordered to transfer title of the premises to the Wife so that the Wife could avoid a foreclosure. The Husband then acknowledged in the Stipulation of Settlement that his arrears were about $80,000.00. Although he was to pay both the Wife's attorney and his own on a dollar-for-dollar basis, the Husband paid his attorney in-full without paying DaSilva; a money judgment is now a lien on the Wife's premises. Now, thirteen years later, the Wife remains embroiled in litigation to rid herself of debt which the Husband should have satisfied. The Husband's arguments and actions have been frivolous, intentional, and contumacious. [*5]
Based upon the foregoing, it is
ADJUDGED that the Wife remains indemnified by the Husband, pursuant to the Stipulation of Settlement, for the 2003 judgement awarded to DaSilva for attorney's fees; and it is further
ADJUDGED that the Wife is authorized to enforce the 2003 judgment against the Husband in accordance with NY Civ. Pract. Law & Rules Article 51 & 52, or such other statute for enforcement and execution of a money judgment, provided that any and all monies or property obtained by the Wife shall immediately be surrendered to Attorney DaSilva in whole or partial satisfaction of that judgment; and it is further
ADJUDGED that the Wife shall be entitled to judgment against the Husband for any and all reasonable costs, expenses and legal fees incurred with the execution of the above money judgment against the Husband; and it is further
ADJUDGED that the Wife shall be awarded legal fees incurred in this action and is directed to appear on MAY 19, 2011for a Hearing to determine the amount of such fees; and it is further
ADJUDGED, that notwithstanding the above, the award for attorney's fees in this action shall be vacated if proof of full satisfaction of the 2003 Judgment is filed by the Husband with the Court on or before May 18, 2011.
This constitutes the decision of the Court. Submit judgment.
ENTER
_____________________________________
Judge
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