A.Y. v R.A.

[*1] A.Y. v R.A. 2013 NY Slip Op 50083(U) Decided on January 15, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 15, 2013
Supreme Court, Westchester County

A.Y., Plaintiff,

against

R.A., Defendant.



19402/05



H. B., ESQ.

Attorney for Plaintiff

21 Sherwood Place

P.O. Box 4078

Greenwich, CT 06830

L. C., ESQ.

Attorney for Defendant

437 Madison Avenue, 35th Floor

New York, NY 10022

John P. Colangelo, J.

In this post-judgment matrimonial action, Plaintiff A. Y. ("Plaintiff") moved for an order pertaining to payment of tuition at private school, for the parties' daughter T. The parties have three children: T. (now age 18), J. (now age 16) and N. (now age 12). Plaintiff's initial motion has long been rendered moot. In his response to Plaintiff's motion, Defendant R. A. ("Defendant") interposed a cross motion dated September 22, 2011, seeking several items of relief, including: (1) An order requiring Plaintiff to pay child support to him pursuant to the Child Support Standards Act ("CSSA") calculations for the parties' two sons, J. and N.; (2) A determination of Defendant's child support obligations, if any, with respect to the parties' daughter T.; (3) A money judgment against Plaintiff in the total amount of $19,470.00 representing Plaintiff's alleged share of expenses relating to private school tuition, camp, after school programs as well as for unreimbursed medical expenses allegedly paid by Defendant for the benefit of J. and/or N.; and (4) counsel fees. [*2]

On the October 22, 2011 return date of the motion and cross motion, the Court, by Hon. Robert Neary, ordered a hearing on all issues. Shortly thereafter, in November, 2011, Plaintiff filed a Notice of Motion seeking to require Defendant to pay CSSA child support for T. As Defendant correctly points out in his post-trial submission, Judge Neary's order predated and therefore did not include this claim for relief by Plaintiff. However, in the interests of judicial economy, the Court will consider that motion by Plaintiff as well, particularly since the issues raised with respect to it were addressed during the course of the hearing and are therefore ripe for decision.

Factual and Procedural Background.

The following facts are not in dispute. Plaintiff and Defendant are both medical doctors; Plaintiff is an anesthesiologist and Defendant a radiologist. The parties were married in 1993, and have three children: T. (DOB June 7, 1994), J. (DOB October 21, 1996) and N. (DOB August 25, 2000) (collectively the "Children"). At all relevant times during their marriage, the parties resided in West Harrison, New York, where Plaintiff continues to live. After their separation, Defendant moved from the marital residence to White Plains, New York.

On December 19, 2006, the parties entered into a Separation Agreement (Defendant's Hearing Exh. 1, the "Agreement" or the "Stipulation"). The parties were both represented by counsel at that time and at all subsequent times. The Stipulation, the body of which is some 43 pages in length, was shortly thereafter incorporated but not merged into a Judgment of Divorce (Defendant's Hearing Exh. 2, the "Judgment") entered on December 21, 2006.

Under the terms of the Stipulation, the parties agreed that they would have joint legal and physical custody of the Children, that the Children would spend equal time with both parents on an alternating week basis, and that the parents would equally share all holidays and summer vacations (Stipulation, Art. V). This Agreement apparently functioned well and was generally honored until the Spring of 2010.

Defendant re-married in 2008. When he announced to his Children in March 2010 that his new wife was pregnant, the above-described custody structure quickly crumbled. As the testimony at the Hearing revealed, the reaction of the Children to the news of her pregnancy resulted in a breakdown in the equal time-sharing arrangements of the parties. Instead, the Children each effectively chose for themselves where they wished to reside, so that from on or about April 10, 2010 to the present, T. has resided with Plaintiff and rarely sees or speaks to Defendant; since approximately the same time, J. has resided with Defendant and has had virtually no contact with Plaintiff; and until early 2011, N. continued to keep the original alternate week arrangement between the parties.

In late April 2010, Plaintiff commenced a proceeding in Family Court seeking sole custody of N. and T., and Defendant filed a cross-petition seeking custody of all three Children. After appearances before Family Court Judge Sandra Edlitz, the parties appeared before Family Court Judge Hal Greenwald on February 15, 2011. During that appearance, Plaintiff in effect acceded to Defendant's cross-petition with respect to the two male Children; she advised the Court that she wished to surrender full custody of J. and N. to Defendant, and further agreed that Defendant would have full decision making authority with respect to them. Judge Greenwald acknowledged Plaintiff's application, but held his acceptance of it in abeyance until March 3, 2011, out of concern that Plaintiff's consent might not have been voluntary or intelligent. [*3]However, on February 15, Plaintiff left the Courtroom before the proceeding had concluded. Later that evening, she anonymously deposited N. at Defendant's home, unannounced. N. has resided with Defendant since that time, and on March 3, 2011, Judge Greenwald entered an order awarding Defendant sole decision making authority with respect to both N. and J. (Greenwald Order, Defendant's Hearing Exhibit 19, p. 19). Between that date and May 25, 2011, Plaintiff had several supervised visits with N., but has had virtually no meaningful contact with him since that time.

The Hearing

A hearing with respect to the issues presented by Defendant's cross-motion (other than counsel fees) and Plaintiff's belated November 2011 motion was held during several days beginning in April 2012 and concluding in July 2012 (the "Hearing"). Both parties testified on their own behalf and each introduced a number of exhibits into evidence. Defendant also called Jennifer Jackman, the former attorney for the child N. The issue of counsel fees was addressed on the papers and is disposed of by this Court's companion Decision dated January 16, 2013.

In June, 2012, while the Hearing was ongoing, Defendant interposed an Order to Show Cause concerning tuition and other college-related expenses for T., and for counsel fees incurred by Defendant since his cross-motion was asserted in September 2011. Plaintiff filed a cross-motion for contempt based upon Defendant's alleged failure to pay child support to her with respect to T., and for reimbursement for certain college related and medical expenses that she had allegedly incurred for T. (Motion Sequences 12 and 13). This latest motion and cross motion is considered in a companion Decision, dated January 16, 2013. With respect to the issues and claims for relief addressed during the Hearing, the Court's findings and conclusions are as follows.

Findings and Conclusions

In the post-judgment world of matrimonial law, the stipulation of settlement is the talisman. It is virtually an article of faith that such a stipulation constitutes a binding contract, the terms of which will be strictly enforced absent compelling and unanticipated changes of circumstances that warrant a departure from them. Courts have consistently so held. 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); Ackerman v. Ackerman, 82 AD3d 1020 (2d Dept. 2011). ("The terms thereof operated as contractual obligation binding on the parties . . . and a court should interpret the contract in accordance with its plain and ordinary meaning."). Moreover, even when a stipulation does not specifically address the issues at hand, it frequently serves to inform the court as to the underlying intent of the parties and thereby aid in resolving issues that have arisen since its execution.

The reason behind this judicial predilection is clear, but multi-faceted. The parties freely and voluntarily agree to the terms of their stipulation, and often so confirm in open court and under oath. In addition, the parties in the matrimonial setting are each beginning a new life, separate but still bound together by their mutual promises under their stipulation, and in such circumstances, crave certainly going forward. Despite these factors which tend toward the goal of finality, stipulations in matrimonial cases, unlike the typical civil action, are susceptible to future modification; but because of these factors, modifications may only be ordered upon a showing of compelling and unanticipated changes in circumstances. For the same reasons, in [*4]deciding whether a stipulation modification should be granted, the parties' intent as gleaned from the stipulation should generally govern; only in that manner may the promised certainty be attained.

In the instant case, the Stipulation, when analyzed and applied to the issues raised by the parties' motions and evidence adduced at the Hearing, serves both purposes: as a final arbiter for some issues, and as a trusted guide for others. Thus, the parties have testified themselves, called witnesses, adduced hundreds of pages of exhibits, all to arrive, essentially, back to where they started - - the Stipulation into which they entered on December 19, 2006.

Basic Child Support

With respect to basic monthly child support payments (i.e. excluding add-on expenses), both parties contend that since the custody arrangement set forth in the Stipulation (Article V) has changed - - instead of a literal 50/50 custody arrangement for all three children, one is now residing full time with Plaintiff and the other two with Defendant - - the child support regime established by the Stipulation should be totally revamped, CSSA standards applied, and child support payments revised accordingly. In arguing their respective positions, each party led the Court into a theater of the absurd of claimed child expenses; Plaintiff claims that T.'s expenses exceed $10,000.00 month, excluding her tuition, room and board at New York University, and Defendant made a similar albeit more modest assertion regarding expenses for their two sons - - approximately $10,000.00 per month for both. The Court is constrained to note that at those rates, it would take not a mere village, but a large prosperous city to raise a child.

Be that as it may, what both parties conveniently neglect to mention is that in order to significantly deviate from the terms of the Stipulation and Judgment governing the post-judgment relationship of the parties, more than a mere change in circumstances is required; the changed circumstances must be at once compelling and unanticipated by the terms of the Stipulation itself. See, Colucci v. Colucci, 54 AD3d 710 (2d Dept. 2008); Boden v. Boden, 42 NY2d 210 (1977); Gonzalez v. Gonzalez, 41 AD3d 651 (2d Dept. 2007). When analyzed and applied to each Child, it becomes clear that the Stipulation did indeed anticipate - - by its terms and by its evident intent - - the situation that now obtains, and thus itself provides a solution to the claims of both Plaintiff and Defendant regarding basic child support.

Basic Child Support - - T.

As Plaintiff herself observes in her post-trial submission, albeit in a slightly different context, the Stipulation anticipates the situation present here - - when one child remains, at least in part, the responsibility of the mother. As Article III 2A-B provides

"2. (I) Subject to the terms of paragraph 2C, commencing January 1, 2007, andon the first (1st) day of each month thereafter, until the emancipation of oneof the Children, as and for the support of all three Children, the Father shallpay to the Mother the sum of one thousand five ($1,500.00) dollars permonth.

(ii) Subject to the terms of paragraph 2C, on the first (1st) day of the monthfollowing the emancipation of the first Child and on the first (1st) day ofeach month thereafter, as and for the support of the remaining twounemancipated Children, the Father shall pay to the Mother the sum of onethousand seven hundred fifty ($1,750.00) per month. [*5]

B. Subject to the terms set forth in paragraph 2C, the Father's obligationto pay the sums set forth in paragraph 2A(ii) shall be reduced to the sumof one thousand ($1,000.00) dollars upon the occurrence of anEmancipation Event with respect to the second Child, and eliminatedupon the occurrence of an Emancipation Event with respect to all threeChildren." (Emphasis added).

Article III 2B thus contemplates that when only one child remains, at least in part, under the custody rubic set forth in Article V of the Stipulation (see infra, p. 3), Defendant remains obligated to pay child support but in the reduced amount of $1,000.00 per month. Indeed, it could plausibly be argued that with respect to all three Children, an Emancipation Event has occurred since none of them now reside with their "Father and . . . Mother" (Emphasis added; Stip., Art.VII, p. 22) and therefore no child support would be due from either party. However, such an approach would have significant ramifications with respect to other Stipulation provisions (see Article VIII, Medical Expenses and Article XI, Life Insurance), and does not appear to be consistent with the parties' intent - - namely, to continue to provide child support to the Plaintiff as long as at least one child remains in her care. Other relevant circumstances have not significantly changed since this basic $1,000.00 per month amount was set in 2006; the income of each of the parties, in absolute and relative terms, is similar, and there was no credible testimony or documentary evidence adduced to show that T.'s needs are not being met or that she would not be properly cared for should Plaintiff receive child support of $1,000.00 per month - - as contemplated, indirectly if not directly, by the Stipulation.

Accordingly, Plaintiff is to receive from Defendant the gross amount of $1,000.00 per month in child support for the child T. However, in accordance with Article III 2 C of the Stipulation, that amount is subject to a dollar for dollar reduction for any amount Defendant contributes to T.'s room and board expenses while enrolled at college. During the course of the Hearing, the Court learned that T. had been accepted to and will attend New York University as an undergraduate. The Stipulation is clear that the parties are to share the cost of a private college for each of their Children - - including tuition, room, board and related expenses - - with Defendant paying two thirds of such expenses and Plaintiff paying one third. (Stipulation, Article IV). The Stipulation also provides that Defendant is entitled to deduct from his basic child support payment to Plaintiff, on a dollar for dollar basis, any amount he pays for such college room and board. (Stipulation, Art. III 2 C). Accordingly, Defendant may deduct from any child support payments to Plaintiff with respect to T. any amounts that he pays toward T.'s room and board at college - - presumably New York University.

Basic Child Support- - N. and J.

As far as the parties' sons N. and J. are concerned, it is undisputed that they both reside with Defendant on a full time basis, and have had little, if any, significant contact with Plaintiff for nearly two years. Given the changes in the custodial arrangement for J. and N. - - from a 50/50 split in physical custody to sole custody with Defendant - - Defendant seeks to require Plaintiff to pay, for the first time, child support to him for them. However, the relevant provisions of the Stipulation militate against such a ruling.

As discussed above, Article III of the Stipulation established the financial responsibilities of the parties as far as child support is concerned. Under Article III, payments for basic, monthly [*6]child support flow in only one direction - - from Defendant to Plaintiff - - based, presumably, upon the then income disparity between the parties. (Stip., Art. III p. 6-9). That disparity, as the Hearing testimony and exhibits reflected, has persisted unabated to the present day. Perhaps in anticipation of such continued financial disparity, the parties agreed that "neither party shall at any time make any application to modify the financial provisions of this Article III or the financial provisions of the divorce decree subsequently entered between the parties." (Stip., Art. III 4, p. 10). This non-modification provision, however, was effectively superceded, in part, by the final handwritten paragraph of Article VII of the Stipulation, which expressly permits Defendant to apply for a modification of his Article III Child Support obligations should "one or more of the Children reside primarily with the Father" - - precisely the situation that now obtains. As Article VII 2 states,

"2. Notwithstanding any other term or provision contained in this agreement, inthe event one or more of the children reside primarily with the Father, he shallbe permitted to make any application he deems appropriate to modify his childsupport obligations as set forth in Article III and the resulting order shallsupercede the terms of this agreement." (Emphasis added).

Significantly, Article VII 2 supercedes the non-modification clause of Article III 4, but only to the extent of permitting Defendant to seek a reduction of "his child support obligations." (Emphasis added). Article VII 2 says nothing about seeking to impose - - for the first time - - a child support obligation upon Plaintiff, even if one or more Children begin to exclusively reside with Defendant. Indeed, imposing such an obligation upon Plaintiff would contradict the basic structure of the Stipulation and contradict the plain meaning of the non- modification provision of Article III. Moreover, there is no indication that Defendant - - whose annual income exceeds $750,000.00 - - is unable or unwilling to support J. and N., or that their needs are being neglected.

Accordingly, the Court concludes that Defendant is no longer obligated to pay Plaintiff basic monthly child support for the parties' sons J. and N., but that Defendant's application to require Plaintiff to pay basic monthly child support to Defendant for J. and N. is denied in all respects.

Add-On Expenses: Private School Tuition, Summer Camp and After School Programs for J. and N.

By his cross-motion, Defendant seeks compensation for one-third of the amounts he has expended on private high school tuition, camp expenses, and after school programs for J. and N. During the course of the Hearing, Defendant clearly established that he alone has paid for his son N.s' tuition at a private school and for certain camp and after school activities of both J. and N.; Defendant maintains that pursuant to Article III 2(D) of the Stipulation, he should be reimbursed for one-third of the amounts spent for such tuition and activities. Conversely, Plaintiff contends that she bears no responsibility for any of these expenses since they were allegedly not necessary for the well being of either son, and in any event, she never consented to them. Once again, the terms of the parties' Stipulation prove dispositive on these issues.

Article III D sets forth the parties' potential obligation to share in the aforementioned expenses for the Children - - private high school, summer camp and after school/tutoring [*7]programs. As Article III 2 D provides,

"D. (I) Subject to the terms of paragraph 3D(iii), for the period January 1,2007 through December 31, 2009, the parties shall share equally thefollowing costs for each Child and until that Child graduates highschool:

(a) Private school tuition for any Child that is attending a private school,the decision for which shall be made pursuant to the terms set forth inArticle V.

(b) Summer camp, the decision for which shall be made pursuant to theterms set forth in Article V.

(c) After school programs, the decision for which shall be madepursuant to the terms set forth in Article V.

(d) Tutoring and/or lessons for any of the Children, the decision forwhich shall be made pursuant to the terms of Article V.

(ii) For the period subsequent to December 31, 2009, the parties shallshare the costs and [sic] set forth in paragraph 2 D (I) in thefollowing purportions: Husband - two-thirds; Wife - one-third.

(iii) Both parties agree that without the consent of the other party neitherparty shall incur any expenses set forth in paragraph 2D (I).

(iv) Each party shall be responsible for payment of their own childcareexpenses." (Emphasis added).

Article III D in turn refers to Article V, which contemplates a discussion between and agreement by the parties before a decision in any of the three above-referenced areas is made. As Article V 1 B states:

"1. Subject to the remaining terms of this Article V, the parties agree that theyshall have joint legal and physical custody of the Children, with theunderstanding that the parties shall consult and agree with respect to allmajor decisions regarding each of the Children.

****

B. Major Decisions. All decisions affecting either of the Children's growthand development and well-being, including but not limited to choice ofschool or camp, medical treatment (except in the event of emergency),psychotherapy, psychoanalysis, or like treatment, education, both secularand religious, and the Children's general welfare shall be considered majordecisions and shall be considered and discussed between the parties andagreed to by both parties." [*8]

Thus Article V 1 B and Article III D, when read together, require the parties to initially confer and reach agreement before any Child is enrolled in a private high school, camp or after school program. Whether such enrollment transpires or not, the party who effects such enrollment will not be entitled to reimbursement for expenses he or she incurs unless the other party consents in advance to such charges.

The evidence adduced at trial did not establish, by a preponderance of the evidence, that any of these three criteria had been met; the parties had no meaningful advance discussion of these issues, they failed to agree to any such enrollments, and Plaintiff clearly did not consent to "incur any expenses" with respect to these items. Indeed, Plaintiff testified that she would never have agreed to these enrollments, or consented to such expenditures, in view of the scant to non-existent contact she has had with either of her sons for the past two years.

In the face of these Stipulation provisions, Defendant raised two arguments, at least as far as N.'s private school tuition is concerned, neither of which have merit. First, Defendant testified to discussions he and Plaintiff had prior to their divorce, in which they spoke in the abstract about the relative merits of private as opposed to public school, and expressed a mutual desire to send their children to private schools. It goes without saying that pre-Stipulation discussions do not satisfy the requirements of post-Stipulation consultation and consent; such obligations did not exist prior to December 2006, and had they existed, the parties' communications may well have been more guarded.

Second, Defendant contends that despite the lack of post-Stipulation communication and consent regarding private school, the Court should exercise its discretion and compel Plaintiff to share the cost of tuition because she allegedly attempted - - albeit unsuccessfully - - to sabotage the ability of J. and N. to remain in the Harrison public school system to which they had become accustomed. Defendant maintains that she did so by threatening to advise the Harrison authorities that J. and N. no longer reside with her in Harrison, but with their father in White Plains. Defendant testified that he enrolled and kept N. in private school defensively so that N. would not be forced to endure the potential change in his school routine of leaving a Harrison school for one in White Plains.

Even assuming arguendo that Plaintiff acted as Defendant suggests - - which the evidence adduced at the hearing, including the testimony of N.'s law guardian, Jennifer Jackman, tends to support - - it is insufficient to override the plain terms of the Stipulation. Defendant adduced no evidence - - from educational experts, psychologists or otherwise - - other than his own assertions, that N. would have been harmed or educationally disadvantaged if he had been compelled to change schools or school districts. Since Defendant failed to show that the best interests of the child N. were implicated by Plaintiff's conduct, the Court will not contravene the clear mandate of the Stipulation - - namely, that Plaintiff be consulted about and consent to a decision to enroll N. in private school before monies are expended for which she will bear responsibility. Accordingly, Defendant's motion to require Plaintiff to share in the cost of private school tuition (other than college) for N., whether incurred in the past or going forward, is denied in all respects.

A similar fate awaits Defendant's efforts to force Plaintiff to pay for summer camp or after school programs for J. and N.. Defendant failed to prove by a preponderance of the evidence that Plaintiff was consulted in advance about or approved these expenses. Although, as [*9]Defendant testified and Plaintiff admitted, J. and N. may well have attended the same or similar camps or programs in the past, Defendant failed to establish what the Stipulation requires as a prerequisite for enforced shared payment: actual consultation and affirmative consent - - not implied acquiescence based on past inaction. Accordingly, as is the case with N.'s private school tuition, Defendant's effort to require Plaintiff to share in the cost of camp and after school programs proves unavailing.

Unreimbursed Medical Expenses for N.

A different result obtains, however, as far as unreimbursed medical expenses are concerned. Defendant seeks to have Plaintiff pay one-third of certain unreimbursed medical costs - - all relating to psychological therapy for N. - - in the total amount of $2,400.00 which he expended for N. during the period of March 2011 through August 2011, shortly before the instant motions were filed.

Article VIII 4 B of the Stipulation provides that beginning January 1, 2010, "the Husband shall pay two-thirds (2/3) and the Wife shall pay one-third (1/3) of the cost of all uninsured medical expenses relating to each child, including but not limited to physicians' services, hospital, dental and orthodontia expenses, psychiatric or psychological expenses and pharmaceutical and optometry expenses." The Stipulation characterizes the medical treatment of a child, including "psychotherapy . . . or like treatment" as a "major decision and shall be considered and discussed between the parties and agreed to by the parties." (Stip., Art. V 1 B).

Undoubtedly because of the importance and oftentimes unanticipated nature of medical expenses, the Stipulation does not require that before a medical expense is incurred, both parties must consent to such an expenditure. This stands in contrast to the situation that prevails when, as discussed above, school or camp expenses are contemplated. (See Stip. Art. III 2 D iii). Thus, a sound interpretation of the Stipulation, as far as medical expenses are concerned, would permit a parent with custodial supervision to first seek the other party's advice and consent but failing that, to exercise his or her best judgment in obtaining the care the child needs, incur the expense, and then seek reimbursement from the other parent.

Here, as far as N. is concerned, both parties testified as to the events in 2011 that could certainly be described as traumatic for N. Among other things, in early 2011 the parties were in the midst of a custody dispute which culminated in Plaintiff unilaterally relinquishing custody of N. to Defendant, and unceremoniously and without warning to Defendant, dropping him off at 9 P.M. on March 3 on Defendant's doorstep. Moreover, Defendant testified - - somewhat confirmed by Plaintiff's own testimony - - that during the period in which N. received the psychological treatment for which Defendant seeks reimbursement, Defendant's communications with Plaintiff were, to put it mildly, either strained or non-existent, and the Court credits that testimony. Under such circumstances Defendant, as N.'s custodial parent, made a judgment that the Child needed psychological treatment, and the Court, in light of the above circumstances, will not second guess that decision. At the Hearing, Defendant adduced sufficient evidence that the expenditures for which he seeks reimbursement were properly made.

In view of these facts, Defendant is entitled to be reimbursed by Plaintiff in the amount of $800.00 ($2,400.00 x 1/3). Plaintiff is directed to pay such amount to Defendant by no later than thirty (30) days from the date of this Decision. Should she fail to make such payment, then Defendant may submit a judgment, on notice to Plaintiff, in that amount, plus statutory interest.

[*10]Conclusion.

The foregoing constitutes the Decision and Order of this Court with respect to motions which the Hearing addressed, as described at pages 1-2 of this Decision.

Dated: January 15, 2013

White Plains, New York

Hon. John P. Colangelo

Acting Supreme Court Justice