Preston E. v Marieke B.

[*1] Preston E. v Marieke B. 2012 NY Slip Op 51837(U) Decided on September 21, 2012 Supreme Court, Westchester County Colangelo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2012
Supreme Court, Westchester County

Preston E., Plaintiff,

against

Marieke B., Defendant.



14115/2009



Steven Mandel, Esq.,

The Mandel Law Firm

370 Lexington Avenue

Suite 505

New York, New York 10017

Sam R. Watkins, Jr., Esq.

Watkins & Cherneff

106 Corporate Park Drive

Suite 401

White Plains, NY 10604

John P. Colangelo, J.

In this post-judgment matrimonial action, Plaintiff Preston E. ("Plaintiff") moves by Order to Show Cause to terminate maintenance payments presently required to be made to Defendant Marieke B. ("Defendant"), his former spouse, on the ground that Defendant is and has been co-habiting with another person, namely Jeffrey B. ("B") in violation of the Stipulation of Settlement, dated April 18, 2010 (the "Stipulation"). Plaintiff also seeks to recoup maintenance payments previously made to Defendant during the period of such proscribed co-habitation. Defendant has opposed Plaintiff's motion and interposed a Cross-Motion to increase Plaintiff's child support payments to her in an amount that would, if added to the current level of child support as set forth in the Stipulation, approximate the amount of child support and maintenance together now being paid by Plaintiff. Of course, each party has made the ubiquitous application for counsel fees.

Factual and Procedural Background

The parties were married in November, 2001, and have two children, ages seven and four. In April, 2010 the parties entered into the Stipulation which was incorporated but not merged into the Judgment of Divorce in November, 2011 (the "Judgment").

The Stipulation provided for payment by Plaintiff of child support in the base amount of $2,083.33 per month, plus 25% of any bonus checks he receives, as well as certain add-on expenses. The parties acknowledged in the Stipulation that such child support provision "deviates from the basic child support obligation set forth in the Child Support Standards Act and has deviated therefrom because the noncustodial parent [Plaintiff] has physical custody of the children 6 of every 14 days and one half of all vacations and public holidays . . . ."

The Stipulation also required Plaintiff to make monthly maintenance payments to Defendant in the amount of $1,833.33 for four years. Plaintiff's motion revolves around the Stipulation provision pertaining to when and under what circumstances this maintenance obligation may be terminated. That provision, Article XXVII of the Stipulation, states in pertinent part as follows:

"Such maintenance payments shall cease upon occurrence of whichever of thefollowing shall occur first:

The death of either party.

The remarriage of the Wife as herein defined. For purposes of thisStipulation, the term "remarriage" shall mean and include:

entering into a marriage contract or marriage ceremony, whether civil orreligious, and whether or not such marriage be void or voidable and laterannulled or avoided;

cohabiting with an unrelated adult person, whether or not they holdthemselves out as husband and wife, for a cumulative period of 30 days."(Stipulation, p. 27; emphasis added.)

By his motion, Plaintiff contends that his maintenance payments should be terminated since Defendant has been co-habiting with another man within the meaning of the Stipulation since in or about October 2010. In her opposition and cross-motion papers, Defendant conceded [*2]as much at least as far as the fact of co-habitation, as opposed to the date of its inception, is concerned. Based on such co-habitation, Plaintiff seeks to terminate maintenance payments immediately, and to obtain reimbursement for any such payments made after the thirtieth day of co-habitation. Defendant opposes any claim for recoupment of maintenance already paid, and has cross-moved for an increase in child support payments should maintenance be terminated on the ground that such termination would constitute a change in circumstances, and compel a re-calculation of child support in accordance with the Child Support Standards Guidelines.

For the reasons set forth below, Plaintiff's motion to recoup maintenance amounts previously paid is denied, his motion to terminate maintenance payments going forward is granted, and Defendant's Cross Motion to upwardly modify the Stipulation to increase child support payments is denied in all respects.

Discussion and Conclusions.

Recoupment of Maintenance Payments.

The law is clear that claims for recoupment of support payments - - be they maintenance or child support - - are rarely granted. Courts have long held that public policy militates against granting recoupment of maintenance or child support payments previously made. Such policy is grounded upon the presumed fact that the monies previously transferred have already been used to support the recipient spouse and his or her children, and therefore ordering a forced return of such payments may well cause a hardship. See, e.g., Coleman v. Coleman, 61 AD2d 757 (1st Dept. 1978) ("Recovery of child support payments has not been sanctioned in this jurisdiction for the essential reason that such support (like alimony) is deemed to have been devoted to that purpose, and no funds exist from which one may recoup monies so expended."); Redgrave v. Redgrave, 25 AD3d 973, 974 (3d Dept. 2006) ("[M]aintenance payments cannot be recouped because there is a strong public policy against doing so."); Grossman v. Ostrow, 33 AD2d 1006 (3d Dept. 1970); Klein v. Klein, 58 AD2d 811 (2d Dept. 1977).

In addition, an unstated but apparent reason behind this general rule is also clear: to do otherwise - - particularly in cases where, such as here, one spouse received maintenance payments which under the terms of the parties' stipulation should have been terminated due to the occurrence of a particular event, such as proscribed cohabitation - - would enmesh the Court in the process of, perhaps for a second time, not only investigating and unraveling the details of yet another intimate relationship, but determining the precise time when such prohibited events occurred. Such a process, akin to the now rare grounds trial in a divorce action, is a recapitulation that courts are eager to avoid. Cf. Jacobs v. Patterson, 143 AD2d 397 (2d Dept. 1988) Petek v. Petek, 239 AD2d 327 (2d Dept. 1997).

Accordingly, recoupment of prior maintenance payments has been granted only in limited circumstances, such as when the condition which triggers a payment termination or reduction - - remarriage or increased income, for example - - is actively concealed by the party receiving payments. See Jacobs v. Patterson, 143 AD2d 397 (2d Dept. 1988); Stimmel v. Stimmel, 163 AD2d 381 (2d Dept. 1990). In the instant case, Plaintiff has not adduced sufficient evidence to raise an issue of fact as to whether any such extraordinary situation is present here. Accordingly, Plaintiff's attempt to recover past maintenance payments proves unavailing.

Termination of Maintenance and Increase in Child Support

With respect to the termination of maintenance payments going forward, however, the [*3]Stipulation is clear and should be enforced. The Stipulation plainly provides that "maintenance payments shall cease" if one of several events occur, one of which is if Defendant is "cohabiting with an unrelated adult person, whether or not they hold themselves out as husband and wife, for a cumulative period of 30 days." Since Defendant admits such cohabitation with Jeffrey B., Defendant effectively concedes that maintenance payments should cease.

However, by her cross-motion Defendant contends that should maintenance be terminated, the amount of child support payments should be increased to make up the difference; in other words, that child support should increase so that Defendant receives approximately the same total amount in monthly support payments that she has been receiving, albeit denominated in the future solely as child support as opposed to partially child support and partially maintenance. Defendant's argument, however, is belied by the Stipulation itself - - both by what it says and what it does not say.

The Stipulation clearly states that maintenance will terminate if Plaintiff co-habits with another person for more than 30 days in total. The Stipulation does not provide that should maintenance be discontinued, for this or for any other reason, child support should be recalculated and increased to compensate for such loss of maintenance, and for obvious reason: such a clause would effectively render the Stipulation provision terminating maintenance payments a dead letter. The parties could have provided for such a compensatory recalculation or increase in child support had they so chose. They did not. The wages of Defendant's evident failure to insist that the Stipulation provide for that contingency should be visited upon her unless, of course, such a result would deprive the children of adequate care and sustenance.

Defendant asserts that such a calamity would befall the children, but offers no facts to support that claim other than the obvious one - - that she will no longer receive maintenance payments and will therefore have less disposable income. Significantly, there is no credible indication in the motion papers that the children would receive inferior care should Defendant continue to receive the basic monthly child support amounts, plus the add-ons specifically called for in the Stipulation; indeed, the parties expressly agreed to depart from the Child Support Standards Act Guidelines not for the reason asserted by Defendant - - to afford Plaintiff a tax break - - but because the children regularly spend a significant amount of time - - "6 of every 14 days and one half of all vacations and public holidays" - - with their father and therefore receive "support" from him independent of and in addition to the child support payments made to Defendant. Nothing in the papers indicates that such a visitation and access regimen has been changed in any significant way. Thus, circumstances have not changed sufficiently to warrant an upward modification of basic child support payments.

The law is clear that stipulations are freely negotiated agreements to which the parties are bound, absent compelling circumstances to the contrary. See, e.g., Colucci v,. Colucci, 54 AD3d 710 (2d Dept. 2008); Gravlin v. Ruppert, 98 NY2d 1 (2002); Herzfeld v. Herzfeld, 50 AD3d 851 (2d Dept. 2008). Since, in the instant case, no such compelling circumstances are present, the parties - - here, Defendant in particular - - must live with the terms to which they mutually agreed, whether they ultimately redound to benefit one party at the expense of the other. Accordingly, Plaintiff's motion to terminate maintenance payments is granted, and Defendant's cross-motion to increase child support is denied in all respects.

Attorneys' Fees [*4]

Each party seeks an award of counsel fees. DRL §237(a) vests the Supreme Court with discretion to make an award of reasonable counsel fees as justice requires, based upon the equities and circumstances of the case. As the Court of Appeals held in DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881 (1987), "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relevant merit of the parties' positions." See also, Morken v. Morken, 292 AD2d 431 (2d Dept. 2002) ("An evaluation of what constitutes reasonable counsel fees is a matter generally left to the sound discretion of the trial court . . . which is often in the best position to judge those factors integral to the fixing of counsel fees.").

Defendant's income is substantially lower than Plaintiff's income. However, a party always has the right to apply for a modification of his or her support obligations, and there is nothing in either party's motion papers to suggest that their respective motions were frivolous or made in bad faith, or that Plaintiff's motion was made primarily to force Defendant to incur a legal expense she could ill afford. Accordingly, it would be unfair to award counsel fees to either party under these circumstances, and both the motion and cross-motion for counsel fees are denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: September 21, 2012

White Plains, New York

Hon. John P. Colangelo

Acting Supreme Court Justice