Freilich v Freilich

[*1] Freilich v Freilich 2013 NY Slip Op 50771(U) Decided on May 13, 2013 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2013
Supreme Court, Kings County

Alter Freilich, Plaintiff,

against

Naomi Freilich, Defendant.



51309/2012



Laurie E. Mermelstein, Esq.

Attorney for Plaintiff

Seidemann & Mermelstein

974 East 27th Street

Brooklyn, New York 11210

Abe H. Konstam, Esq.

Attorney for Defendant

Mallow, Konstam, Mazur, Bocketti & Nisonoff, P.C.

321 Broadway

New York, New York 10007

Jeffrey S. Sunshine, J.

The following papers numbered 1 to 5 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and

Affidavits (Affirmations) Annexed1

[*2]Opposing Affidavits (Affirmations)2

Reply Affidavits (Affirmations/Affidavits)3

Other Papers Memoranda of Law4 & 5

Introduction

The question presented herein, inter alia, is where a pendente lite stipulation resolving the issues of child support and maintenance is silent as to the retroactive support, is silence a waiver of the retroactive support?

The wife, Naomi Freilich, moves by cross motion for an order of this court (1) directing the husband to pay the wife $9,039.00 in pendente lite maintenance and child support arrears for the period of May 11, 2012 to June 27, 2012; (2) directing the husband to pay the wife $48,523.00 in pendente lite counsel fees; and (3) directing husband to pay to the wife sanctions in the amount of $11,400.00. At the time of oral argument, the request for sanctions was withdrawn.

Background

The parties were married on November 23, 1994. There are three (3) children of the marriage. The children are currently 17, 12, and nine (9) years of age. The parties physically separated on August 30, 2011.

Originally, on May 11, 2012, the wife moved by order to show cause seeking, inter alia, pendente lite child support and pendente lite maintenance. The husband opposed the order to show cause. On June 19, 2012, the matter came before this court. At that time the parties' entered into an agreement resolving the pendente lite application. Counsel, on the record in open court in the presence of the parties, spread their agreement on the record and thereafter, settled an order on notice which was signed on October 23, 2012. The wife's counsel stated on the record on June 19, 2012 that

[t]he parties agree that during the pendency of the above action or until further order of the Court, plaintiff shall pay to the defendant Mrs. Freilich, $8,500 per month as taxable maintenance to defendant [wife] and deductible to plaintiff [husband] and $4,100 per month beginning June 27, 2012 in pendente lite child support.

The order which was settled on notice states, in part, that it is

ORDERED that Plaintiff is directed to pay the Defendant pendente lite child support for the two children, David and Isaac, FOUR THOUSAND ONE HUNDRED DOLLARS ($4,100) per month beginning June 27, 2012; and it is further . . .

The parties' pendente lite agreement for maintenance and child support was silent on the issue of retroactivity. The wife now seeks the child support and maintenance arrears for the period of May 11, 2012, the date of the initial application, until June 27, 2012, the date that payment commenced pursuant to the parties agreement. She avers that the [*3]arrears total $18,696.72 with credits in the amount of $9,657.20 [FN1]. Accordingly, the wife seeks an award for child support and maintenance arrears in the amount of $9,039.57 ($18,696.72 - $9,657.20 = $9,039.57)

On June 19, 2012, the issue of pendente lite counsel fees was decided by this court on the record and thereafter, reduced to a written order dated October 23, 2012, along with the pendente lite support and access issues which were resolved on consent, as discussed herein. The pendente lite counsel fee award to be paid by the husband to the wife was for the amount of $15,000.00.

At this time, the wife seeks an additional counsel fee award in the amount of $48,523.00. Pursuant to the retainer agreement annexed to the wife's cross motion, defendant's counsel charges an hourly rate of $600.00. The total amount billed by counsel as of November 2012 was $63,523.00. The wife received $15,000.00 pursuant to this court's first counsel fee award and the wife paid a total of $43,000.00 to counsel. The wife avers that her father initially paid $38,000.00 of the $43,000.00 paid to her counsel but these monies are a loan. She further avers that she has repaid $20,000.00 of the $38,000.00 to her father which the husband contends was from marital funds. The wife's counsel has received a total of $58,000.00 as of November 2012. Upon review of the billing records of counsel annexed to the application, counsel already had billed $51,283.11 by the time of the initial application for counsel fees which was made in June, 2012. Since that time counsel billed an additional $12,515.37 through November 2012.

The husband avers that his income in 2011 was $361,00.00 and that it should be approximately the same in 2012. The annual obligation agreed to for temporary maintenance and child support is $151,200.00. The husband additionally agreed to pay for the school tuition, $34,800.00 annually, and summer camp, $7,200.00 annually. These add-on obligations total $42,000.00. Furthermore, the husband avers that he owes taxes to New York, City, New York State and the Internal Revenue Service in the amount of $132,871.91. To support his claim that he has tax debts the husband relies solely on his affidavit of net worth. This Court notes that there is no indication that the husband is repaying the debt at this time.

The wife avers that the only income she has is the temporary maintenance agreed to in the amount of $8,500.00 each month. The wife contends that she is obligated to pay from those funds three (3) mortgages on the martial home totaling $49,898.64 annually ($4,158.22 each month) and the maintenance and taxes for the parties' summer home located in Woodridge, New York which is $10,000.00 each year. The husband contends that the wife has full use of that summer home and has the ability to rent the home to derive further income.

This Court notes that there has been substantial motion practice to ascertain the [*4]sources of income of both parties which includes multiple applications to quash third party subpoenas.

Discussion

Retroactive Support

It is well settled that pursuant to Domestic Relations Law (DRL) section [B] [7] [a] temporary child support payments are retroactive to the date of service of the first application (see DRL § 236 [B] [7] [a] ["Such order shall, except as provided for herein, be effective as of the date of the application therefor, and any retroactive amount of child support due shall be support arrears/past due support and shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which has been paid."] [emphasis added]; see also Dooley v. Dooley, 128 AD2d 669, 513 N.Y.S.2d 167 [2 Dept.,1987]; Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept., 2011]; Caviolo v. Caviolo, 155 AD2d 410, 547 N.Y.S.2d 83[2 Dept., 1989] [" . . . the award of temporary maintenance should be made effective as of . . . the date of service of the wife's application"]).

"Pursuant to CPLR 2104, an oral stipulation is binding on the parties provided that the agreement is spread upon the record in open court'"(Sontag v. Sontag, 114 AD2d 892, 495 N.Y.S.2d 65 [1985]; see CPLR §2104). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from consequences of a stipulation made during litigation" (Sontag v. Sontag, 114 AD2d 892, supra; see Abeido v. Abeido, 54 AD3d 330, 863 N.Y.S.2d 64 [2 Dept., 2008]; see also Caroli v. Allstate Ins. Co, 100 AD3d 941955 N.Y.S.2d 128 [2 Dept., 2012]).

Upon review of the transcript wherein the parties spread their pendente lite agreement on the record the wife's attorney stated, "[t]he parties agree that during the pendency of the above action or until further order of the Court, plaintiff shall pay to the defendant Mrs. Freilich $8,500 per month as taxable maintenance to defendant and deductible to plaintiff." Counsel's statement, which was not refuted at that time, makes it apparent that the parties' agreement does not constitute a final order, even though the open court requirement was satisfied.[FN2]

In Golfo v. Kycia Associates, Inc., the Appellate Division, Second Department held that

[a] valid waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver would have been enforceable' (Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 NY2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265; see Gresser v. Princi, 128 AD2d 752, 753, 513 N.Y.S.2d 462). It may arise by either an express agreement or by such conduct or a failure to act as to evince an intent [*5]not to claim the purported advantage (see Hadden v. Consolidated Edison Co. of NY, 45 NY2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136; Gresser v. Princi, 128 AD2d at 753, 513 N.Y.S.2d 462). A waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence' (Peck v. Peck, 232 AD2d 540, 540, 649 N.Y.S.2d 22). Rather, there must be proof that there was a voluntary and intentional relinquishment of a known and otherwise enforceable right (see Peck v. Peck, 232 AD2d 540, 649 N.Y.S.2d 22).

(Golfo v. Kycia Associates, Inc., 45 AD3d 531, 845 N.Y.S.2d 122 [2 Dept., 2007] at 124; see Tutt v. Tutt, 1 AD3d 967878 N.Y.S.2d 760 [2 Dept., 2009]; see also Tafuro v. Tafuro, 102 AD3d 877, 958 N.Y.S.2d 202 [2 Dept., 2013] ["[t]he party claiming a waiver must come forward with evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right to child support" (Stevens v. Stevens, 82 AD3d at 874, 918 N.Y.S.2d 879; see Matter of Barrio v. Montanez, 71 AD3d 1140, 1140, 896 N.Y.S.2d 905; Matter of O'Connor v. Curcio, 281 AD2d at 105, 724 N.Y.S.2d 171)]).

"Child support payments may be waived prospectively, before the obligation to make such payments has accrued (see Matter of O'Connor v Curcio, 281 AD2d 100 [2001]). The party claiming a waiver must come forward with evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right to child support (see Matter of Barrio v Montanez, 71 AD3d 1140 [2010])." (Stevens v. Stevens, 82 AD3d 873, 918 N.Y.S.2d 879 [2 Dept., 2011] see Tafuro v. Tafuro, 102 AD3d 877, supra). "In Dox v. Tyson [90 NY2d 166659 N.Y.S.2d 231], the Court of Appeals rejected the notion of implied waiver of child support indicating that failure to demand payment or seek enforcement of child support obligations for 11 years did not constitute a waiver and that forgiveness of nonpayment based on implied waiver is prohibited" (Elliott Scheinberg, Contract Doctrine and Marital Agreements in New York, at 529 [2nd ed. 2011]).

In the case at bar, both the oral agreement and the written order based upon that agreement are silent to the issue of retroactive child support and maintenance. The wife did not waive her right to readdress these issues at a later date because she did not intentionally relinquish this known right by not addressing it on the record (see Silverman v. Silverman, 304 AD2d 41, 756 N.Y.S.2d 14 [1 Dept., 2003] ["[s]uch a substantial and important entitlement should not be deemed waived merely by counsel's unexplained failure to submit a post trial brief."]). There was also no written agreement that the wife expressly waived her rights (see O'Connor v. Curcio, 281 AD2d 100, 724 N.Y.S.2d 171 [2 Dept., 2001] [The mother, by written agreement, expressly waived future child support payments...]). Furthermore, silence is not tantamount to a waiver (see Mitchell v. Mitchell, 170 AD2d 585, 566 N.Y.S.2d 361 [2 Dept., 1991] ["...while parties may waive their rights which arise under an agreement or judgment, waiver is not created by negligence and may not be inferred from mere silence"]). [*6]

In accordance with the parties' agreement, the husband is to pay temporary child support to the wife in the amount of $4,100.00 each month and temporary maintenance in the amount of $8,500.00 each month. The wife is entitled to retroactive support arrears from the date of service of the first application. This Court notes that counsel for the wife purports the support is retroactive to the date of application it is from the date of service of the application. According, the wife is awarded retroactive support for the period of May 14, 2012 through June 26, 2012 amounting to $18,226.85 [FN3] (see Domestic Relations Law § 236 [B][6][a]; see also Elimelech v. Elimelech, 58 AD3d 672, 874 N.Y.S.2d 490 [2 Dept., 2009]; Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008]; Dooley v. Dooley, 128 AD2d 669, supra). However, the wife concedes that the husband is entitled to credits in the amount of $9,657.00 and therefore, is seeking an award for retroactive temporary child support and temporary maintenance arrears amounting to $8,569.85, giving the husband a credit for the items he paid for between May 11, 2012 to June 26, 2012 (see Dox v. Tynon, 90 NY2d 166 supra). The husband shall pay the arrears in the amount of $8,579.10, within 30 days.

Interim Counsel Fees

An award of interim counsel fees is within the discretion of the court (DeCabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]). Pursuant to Domestic Relations Law section 237(a), the court in an action for divorce . . . may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding.

"An award of an attorney's fee pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Grant v. Grant, 71 AD3d 634, 634-635, 895 NYS2d 827 [2 Dept., 2010], quoting Gruppuso v. Caridi, 66 AD3d 838, 839, [*7]886 NYS2d 613 [2 Dept., 2009], quoting Morrissey v. Morrissey, 259 AD2d 472, 473, 686 NYS2d 71 [2 Dept., 1999]). "In determining whether to award such a fee, the court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Gruppuso, 66 AD3d at 839, quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881, 524 NYS2d 176 [1987]). " An appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances'" (DiBlasi v DiBlasi, 48 AD3d 403, 405, 852 NYS2d 195 [2 Dept., 2008], lv denied 10 NY3d 716, 862 NYS2d 468 [2008], quoting Grumet v Grumet, 37 AD3d 534, 536, 829 NYS2d 682 [2 Dept., 2007] [citations omitted]).

It is also well settled that "[a]n award of interim counsel fees is designed to create parity in divorce litigation by preventing a monied spouse from wearing down a nonmonied spouse on the basis of sheer financial strength" (Rosenbaum v Rosenbaum, 55 AD3d 713, 714, 866 NYS2d 234 [2 Dept., 2008], citing O'Shea v O'Shea, 93 NY2d 187, 193, 689 NYS2d 8 [1999]; Wald v Wald, 44 AD3d 848, 844 NYS2d 86 [2 Dept., 2007]). "Such awards are designed to redress the economic disparity between the monied spouse and the non-monied spouse' and ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet'" (Kaplan v Kaplan, 28 AD3d 523, 523, 812 NYS2d 360 [2 Dept., 2006], quoting Frankel v Frankel, 2 NY3d 601, 607, 781 NYS2d 59 [2004], quoting O'Shea, 93 NY2d at 190).

In the case at bar, the wife requests an addition interim counsel fee award in the amount of $48,523.00. The wife's counsel has billed $63,523.00 through November 2012. Counsel has been paid $58,000.00; $15,000.00 pursuant to this court's first interim counsel fee award from June 2012 and the wife paid a total of $43,000.00 to counsel. The wife avers that her father loaned her $38,000.00 for counsel fees and the husband avers that wife repaid her father $20,000.00 from marital funds. At the time of the first application, counsel already billed $51,283.11. Since that time counsel billed an additional $12,515.37 through November 2012. This Court finds that under the totality of the facts and circumstances presented and in consideration of the parties' respective incomes and the tremendous amount of motion practice, the husband is directed, at this time, to pay the wife an additional interim counsel fee award in the amount of $3,000.00. Both parties appear to have extensive resources to engage in extensive litigation.

ConclusionThe wife's cross motion is granted to the extent that retroactive temporary child support and temporary maintenance is awarded in the amount of $8,569.85 for the period of May 11, 2012, the date of application, to June 27, 2012 which includes credits for payments the husband voluntarily made as conceded by the wife. The wife is awarded $3,000.00in additional interim counsel fees to be paid within 30 days hereof. The application for sanctions was withdrawn.[*8]

This shall constitute the decision and order of the court.

E N T E R:

JEFFREY S. SUNSHINE

J. S. C. Footnotes

Footnote 1:The credits the wife considers are the Cenlaw mortgage $5,325.02, Bank of America mortgage $1,215.86, TD Bank $1,815.38 and automobile payment $1,300.94.

Footnote 2:During the pendency of this action, does not mean commencing with this order. Rather, the application for support commences upon service of the first application and is pending from that day forward.

Footnote 3:For the period of May 14, 2012 - May 31, 2012, the retroactive maintenance obligation is $5,030.14 [$8,500.00 x 12 = $102,000.00 / 365 = $279.45 x 18 = $5,030.14] and the retroactive child support obligation is $2,426.30 [$4,100.00 x 12 = $134,79 x18 - = $2,426.30]. For the period of June 1, 2012 - June 26, 2012, the retroactive maintenance obligation is $7,265.75 [$8,500.00 x 12 = $102,000.00 / 365 = $279.45 x 26 = $7,265.75] and the retroactive child support obligation is $3,504.66 [$4,100.00 x 12 = $134,79 x 26 = $3,504.66].)