Lomaglio v Lomaglio

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[*1] Lomaglio v Lomaglio 2012 NY Slip Op 50855(U) Decided on February 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2012
Supreme Court, Monroe County

Larry J. Lomaglio, Plaintiff,


Carmen M. Lomaglio, Defendant.


J. Scott Odorisi, Esq.

Attorney for Plaintiff

311 S. Washington Street

East Rochester, New York 14445

Robert Levine, Esq.

Attorney for Defendant

48 South Avenue

Webster. New York 14580

Richard A. Dollinger, J.

When does a trial court judge get to review or opine, expand upon or possibly modify an appellate division ruling? Never? Never, you say? Well, to quote Captain Corcoran in H.M.S Pinafore, "hardly ever."

This case may be that "hardly ever" time.

In 1998, this couple were divorced. The Court can not determine from this record how the maintenance provisions in the divorce decree were concluded. The original stipulation or agreement, setting forth the maintenance obligation, is not included in the papers before the Court. However, what is undisputed is the original divorce required the husband to pay maintenance for 18 months. The divorce did not require him to contribute any sum to the wife's health insurance costs.

In 1999, the wife filed an application for contempt. Supreme Court held a hearing on the wife's request for modification of her maintenance and to require the husband to make a contribution to her health insurance costs. After a trial, the court denied her request for modification of maintenance and a contribution to her health insurance. The [*2]defendant appealed.

The Appellate Division, Fourth Department, affirmed the trial court's conclusion that the wife was not entitled to permanent maintenance in LoMaglio v. LoMaglio, 273 AD2d 823 (4th Dep't 2000). The Court upheld the trial court's conclusion that 18 months was a sufficient period to permit the wife to become self-sufficient concluding there was "no basis to disturb the court's exercise of discretion in awarding durational maintenance for that limited period." Id. However, when considering the application for contribution to or purchase of health insurance, the court directed:

because defendant's medical condition is likely to be permanent, the court should have directed plaintiff to continue to provide the same level of medical insurance coverage that he provided during the marriage to the extent such coverage is not provided by defendant's employer . .

LoMaglio v. LoMaglio, 273 AD2d at 823. The court cited Fischer v Fischer, 199 AD2d 1028 (4th Dep't 1993) in support of this proposition. The appeals court modified the judgment accordingly.

The higher court determination regarding the "permanency" of the wife's condition is intriguing because the lower court, in its decision, described Ms. Lomaglio's "physical difficulties" as remaining "somewhat constant" since the time of the divorce, "without any change for the worse." Her condition, the lower court concluded, did "not prevent her from maintaining regular full-time employment." Under these facts, the Appellate Division declined to modify the maintenance provision in the divorce decree but, in the quoted section, gave some direction regarding the husband's obligation to provide health insurance for the wife.

After the Appellate Division decision, the husband continued to provide "medical insurance" for the wife. He paid for premiums for the coverage from 2000 through 2008. In 2008, he discontinued paying the premiums. The wife, apparently without such coverage and apparently unable to obtain it, brought this application, seeking reimbursement and restoration of the health insurance coverage.

In her application, the wife alleges that she was diagnosed with an autoimmune disease in 1989, before the divorce. She also sustained a workers compensation injury in 2009 and the costs were covered by compensation. In 2011, she was diagnosed with Type 2 diabetes, which requires her to take expensive insulin. In 2011, the wife was covered by Medicaid, according to her affidavit. There is no evidence as to how she secured this coverage. She asserts that she lost this coverage in September, 2011 and obtained coverage through Healthy New York — a government subsidized health plan — albeit at a cost of $299.45 per month, which she ask this Court to order the husband to pay. The wife also asserts that the husband is obligated to provide dental and vision coverage and asserts a claim for those costs.

The husband challenges the interpretation of the Appellate Division, arguing that the court's use of the word "permanent," while describing the wife's infirmities, does not require non-durational health insurance coverage. Furthermore, the husband argues that interpreting this language to require him to provide non-durational health insurance coverage defies the Domestic Relations Law and is unenforceable.

DRL § 236B(8)(a) provides, in relevant part, that: [*3]

In any matrimonial action the court may order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage not to exceed such period of time as such party shall be obligated to provide maintenance, child support or make payments of a distributive award. . . . The obligation to provide such insurance shall cease upon the termination of the spouse's duty to provide maintenance, child support or a distributive award.

NY DOM REL. LAW § 236B(8)(a).

The husband argues that regardless of the Appellate Division's use of the word "permanent" to describe the wife's infirmities, the Court was without the statutory authority to require the husband to provide health insurance for the wife beyond the term of the maintenance which, under the separation agreement, was only 18 months.[FN1] In response, the wife argues that the Appellate Division holding is decisive on the question of the husband's obligation to provide health insurance and that Section 236B(8)(a), invoked now, does not undercut the Appellate Division holding as either res judicata or the law of the case.

Given this posture, the husband cross-moves before this Court, asking this Court that it apply the terms of the Section 236B(8)(a) to extinguish the husband's obligation to provide health insurance, even in the face of the Appellate Division opinion.

Hence, the Captain of the Pinafore's dilemma or, as in another Gilbert and Sullivan piece, the task for the Learned Judge.[FN2]

First, in reviewing this question, this Court has carefully reviewed the Appellate Division opinion. Ths Court went to the Appellate Division library in Rochester to examine the record on appeal, which is maintained in the Appellate Division library. The librarians informed the Court that because this appeal was a matrimonial matter, the record on appeal was not available for public inspection. The Court wanted to find out if the appeals court, in reaching its 2000 decision, considered the impact of § 236B(8)(a). This Court can find no evidence that either party raised the question before the Court in 2000 and, there is no evidence the Appellate Division even considered the statute.

Second, this Court can not ignore the statutory language of Section 236B(8)(a), which limits the period in which an order for the continuation of health insurance can occur. The Legislature could not have been clearer: the obligation to provide health insurance "shall cease upon the termination of the spouse's duty to provide maintenance." There is simply no statutory authority to continue the husband's obligation to pay for health [*4]insurance beyond the 18-month period for maintenance that the original divorce decree mandated.

Third, there is little case law to guide the Court. In its Lomaglio v. Lomaglio opinion, the Appellate Division, Fourth Department, cited Fischer v. Fischer, 199 AD2d 1028 (4th Dep't 1993). In Fischer v. Fischer, the question of the application of Section 236B(8)(a) was not broached. The court held that the husband should pay the wife's health, hospitalization and medical coverage for three years, the exact same period in which the husband had been ordered to pay maintenance. In essence, Fischer v. Fischer, while not mentioning Section 236B(8)(a), conforms with its intent: the period of healthcare insurance is coterminous with the period of the maintenance.

The Fourth Department in Fischer v. Fischer cites McDermott v. McDermott, 119 AD2d 370 (2d Dep't 1986), in which the Second Department held that it was not an abuse of discretion for the trial court to require the defendant to maintain the existing healthcare coverage or its equivalent for the plaintiff's benefit. The Second Department noted that the term of the maintenance award was three years but, when referring to the term of the health insurance mandate, the court simply stated "under the circumstances, we see no reason to insert a termination date for that obligation." The Second Department made no mention of Section 236B(8)(a).

Recently, the Fourth Department held a party was entitled to modification of maintenance to obtain healthcare benefits. Mundrick v. Mundrick, 72 AD3d 1494 (4th Dep't 2010). The Court, while recognizing the importance and the rising cost of health insurance benefits, did not consider whether healthcare insurance could be ordered beyond the period of maintenance.

Other courts, in granting health insurance as part of the spousal support, have held that it is coterminous with maintenance. Simon v. Simon, 55 AD3d 477 (1st Dep't 2008)(awarding health insurance costs in a non-durational maintenance award); Aguirre v. Aguirre, 245 AD2d 5 (1st Dep't 1997); Feldman v. Feldman, 194 AD2d 207 (2d Dep't 1993)(court had authority to direct husband to continue to provide the wife with health and hospital insurance coverage coterminous with his obligation to provide maintenance); Donna E.F. v. Anthony S.F., 2007 NY Misc. LEXIS 6383; 238 N.Y.L.J. 45 (Sup. Ct. Westchester Cty. 2007)(court orders health insurance coterminous with the husband's maintenance obligation). In short, there is no authority found by this Court which requries this husband to pay health insurance costs after the epriod of maintenance terminates.

Given this express statutory command, this Court can not read the 2000 Appellate Division decision in Lomaglio v. Lomaglio to require the husband to continue health insurance payments beyond the 18-month period set forth in the divorce decree. The Appellate Division's — or even Supreme Court's — equitable powers in matters involving divorce and equitable distribution did not extend to requiring the husband to pay for health insurance beyond the expiration of his maintenance obligation because to recognize those extended judicial powers would violate the express language in the statute.

In the alternative, this Court concludes that the Appellate Division's Court's use of the phrase "permanent" in the text of its Lomaglio v. Lomaglio opinion is ambiguous and was used to only describe the wife's infirmities and was not intended to be construed to create a requirement for the husband to pay health insurance costs beyond the expiration [*5]of his maintenance. This Court construes this ambiguity consistent with the express language of the statute and holds that the husband's obligation to provide health insurance terminated when his maintenance obligation terminated under the original divorce decree.

To ignore this reading of the statute and this construction of the Appellate Division opinion would permit this litigant to enjoy a status enjoyed by no else in New York: payment of her health insurance costs by her divorced husband for a period beyond his maintenance obligation. The wife will have received non-durational maintenance in the form of perpetual health insurance payments by her husband. This Court can find nothing in the Appellate Division opinion, the 1999 opinion of the original Supreme Court justice below or the divorce decree that should permit such a circumstance to exist in contravention of the express Legislative command in Section 236B(8)(a).

Finally, this court declines to hold that the husband's voluntary payment of health insurance premiums well beyond the period of maintenance somehow requires him to continue to pay them. After 18 months or the expiration of his child support payments, his payments for his wife's health insurance were strictly voluntary as a matter of law. He may choose to voluntarily make them again but, this Court will not — nay, can not — require him to do so.

This Court also declines to preclude the husband's claims through invocation of either res judicata or the law of the case doctrines. This Court acknowledges that under the transactional approach to res judicata issues, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy." State v. Seaport Manor A.C.F., 19 AD3d 609, 610 (2d Dep't 2005). Under the circumstances of this case, the "flexible res judicata doctrine" should not be rigidly interpreted so as to deny the husband his chance to seek the statutory benefit of Section 236B(8)(a). See Whitman v. Mastrodonato, 11 AD3d 796, 797 (3d Dep't 2004); Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 (1999)("rigid application of res judicata in this instance, rather than preventing plaintiff from asserting a claim, would unjustly deprive him of one'"). Consistent with this flexible approach, this Court declines to permit res judicata to be used as a sword to cut off the husband's right to seek the benefit of Section 236B(8)(a).

The doctrine of the "law of the case" is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned. Martin v. Cohoes, 37 NY2d 162, 165 (1975). However, the doctrine applies "only to issues that have been judicially determined." Matter of El-roh Realty Corp. v Schwimmer, 74 AD3d 1796, 1798 (4th Dep't 2010); Edgewater Constr. Co., Inc. v 81 & 3 of Watertown, Inc.. 24 AD3d 1229, 1231 (4th Dep't 2005). Here, Appellate Division's prior ruling in this case did not specifically "determine" the husband's claim that the statutory command of Section 236B(8)(a) requires termination of the health insurance mandate when the maintenance terminates. Therefore, this Court declines to apply the law of the case doctrine to void application of the statute.

The wife's motion for contempt to require the husband to pay for her medical insurance costs, in the past, present and future, is denied. The husband's cross-motion to terminate the obligation to pay these costs is granted. Both requests for fees are denied [*6]as is any other incidental relief.

This Court can only draw one final conclusion: like Captain Corcoran, you can never say never. Well, "hardly ever."

Submit order.

Dated: February 9, 2012_______________________________

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:This Court can not determine whether the husband was paying child support for any period in which the wife now seeks payment of her health insurance expenses. There is no evidence of when the husband's child support obligations expired and this Court can not determine the ages of the couples' children. Therefore, while the wife could argue that the Appellate Division decision required that the health insurance mandate extend through the period of child support as the statute permits, this Court has no evidence to conclude that husband had any child support obligations after 2008, when he discontinued paying the wife's health insurance premiums.

Footnote 2:The Learned Judge is the chief characters is Trial by Jury, Gilbert and Sullivan's first operetta.