E.M. v T.M.
Annotate this CaseDecided on July 31, 2013
Supreme Court, Westchester County
E.M., Plaintiff,
against
T.M., Defendant.
20975/2009
John Guttridge, Esq.
Guttridge & Cambareri
Attorney for Defendant
303 South Broadway
Suite 100
Tarrytown, New York 10591
Patricia G. Kitson, Esq.
The Kitson Law Firm
Attorney for Plaintiff
50 Main Street, 9th Floor
White Plains, New York 10606
Colleen D. Duffy, J.
Plaintiff and Defendant were married in 1990, and had two children during the marriage, "T" and "D" (hereinafter, the "Subject Children"). The parties entered into a written settlement agreement on May 5, 2011 ("Stipulation of Settlement"), which was later incorporated by reference but survived the parties' Judgment of Divorce, which was entered on November 14, 2011 ("Judgment of Divorce"). [*2]
On June 6, 2012, Plaintiff filed an Order to Show Cause, Affidavit in Support and exhibits thereto seeking an order declaring Defendant in contempt of court for willful violation of the terms of the parties' Judgment of Divorce. Plaintiff also seeks a money judgment against Defendant for child support arrears, disability pension arrears, and certain medical insurance reimbursements allegedly taken by Defendant. Plaintiff also seeks an order vacating a Qualified Domestic Relations Order, entered January 29, 2012 (the "Disability Pension QDRO"), and counsel fees.
On July 11, 2012, Defendant filed a Notice of Cross-Motion seeking a money judgment for alleged overpayments made to Plaintiff for pension benefits prior to the signing of the QDRO and for reimbursement for amounts Plaintiff deducted from funds she was required to pay Defendant pursuant to the Stipulation of Settlement as Equitable Distribution. Defendant also seeks an order directing Plaintiff to comply with the Stipulation of Settlement and transfer to him his share of Plaintiff's Individual Retirement Account at Fidelity ("Fidelity IRA") and 401k account at TimeWarner, directing Plaintiff to reimburse to him the value of his permitted use of the parties' Aruba timeshare, which Defendant contends Plaintiff barred him from in 2011 and 2012, and directing Plaintiff to transfer certain custodial accounts for the benefit of the parties' son D to Defendant. Defendant also seeks an accounting of the Subject Children's custodial accounts and copies of statements relating to the accounts and seeks counsel fees.
On January 24, 2013, the parties appeared before the Honorable John Colangelo, A.S.C.J. At that time, Plaintiff withdrew her application for an order of contempt.
For the reasons set forth below, Plaintiff's application for child support arrears is denied as is Plaintiff's application to vacate the Disability Pension QDRO. Plaintiff's application for a money judgement for disability pension arrears is granted in the amount of $2,679.52. Plaintiff's application for $1,040 for medical reimbursement checks which she claims were mailed to Defendant and which he withheld from her is granted to the extent that Defendant is directed to request re-issuance of the checks from the insurer and, if such re-issuance is denied, Defendant shall reimburse Plaintiff for the value of the checks.
Defendant s cross-motion for alleged overpayment of child support arrears in the amount of $600.00 is granted, as is Defendant's cross-motion for an order directing that Plaintiff transfer to Defendant his portion of certain retirement accounts held by Plaintiff. Plaintiff is directed to undertake and cooperate with all steps necessary to effectuate the transfers to Defendant of one-half of the value of the Fidelity and Time Warner IRAs. Defendant's claims for alleged overpayment of disability pension assets and for reimbursement for the value of the weeks he did not spend at the parties' Aruba timeshare are denied.
For the reasons set forth herein, each party's claim for attorney's fees is denied.
RELEVANT LAW
A matrimonial settlement agreement is a contract subject to the principles of contract interpretation. Colucci v. Colucci, 54 AD3d 710, 864 N.Y.S.2d 67 (2d Dep't 2008); Sieratzki v. Sieratzki, 8 AD3d 552, 553, 779 N.Y.S.2d 507, 509 (2d Dep't 2004). A settlement agreement must be interpreted to "arrive at a construction that will give fair [*3]meaning to all of the language employed by the parties [and] to reach a practical interpretation of the expressions of the partes so that their reasonable expectations will be realized." Winski v. Russo Kane, 33 AD3d 697, 823 N.Y.S.2d 176 (2d Dept. 2006), citing Matter of Schiano v. Hirsch, 22 AD3d 502, 803 N.Y.S.2d 643 (2d Dept. 2005); see also In re Motors Liquidation Co., 460 B.R. 603 (SDNY 2011).
Whether a contract or a provision is ambiguous is a determination of law for the Court. Bailey v. Fish & Neave, 8 NY3d 523 (2007). A contract provision is ambiguous if it is susceptible to more than one interpretation. Greenfield v. Philles Records, Inc., 98 NY2d 562, 571-72 (2002). Ambiguity must be determined by looking at the agreement as a whole. Lawyers' Fund for Client Protection v. Bank Leumi Trust Co., 94 NY2d 398, 404 (2000); Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342 (1955).
A court must consider the entire contract and will choose the interpretation that best accords with the sense of the remainder of the contract. Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342 (1955).
While a court should reconcile conflicting provisions in a contract when possible, where two clauses are irreconcilable and totally repugnant, the first clause will be accepted and the second rejected. Brennan v. Bally Total Fitness, 153 F. Supp. 2d 408, 415-16 (S.D.NY 2001); Honigsbaum's v. Stuyvesant Plaza, 178 AD2d 702, (3d Dept. 1991); Contacare v. Ciba-Geigy Corp., 15 Misc 3d 1130A, 2007 NY Misc. Lexis 3155, ***8-9 (Sup. Ct., Erie Co. 2007); see also 22 NY Jur. Contracts § 250..
In addition, a specific provision in an agreement governs over a general provision. Muzak Corp. v. Hotel Taft Corp., 1 NY2d 42, 46 (1956); Sumitomo Bank of New York Trust Co. v. Town of North Hempstead, 278 AD2d 402, 404 (2d Dept. 2000), app. denied, 96 NY2d 713 (2001).
CONCLUSIONS OF LAW
A.Plainitff's Claim for Child Support Arrears is Denied
Plaintiff's application for a money judgment for child support arrears is denied.
The Court finds no merit to Plaintiff's contention that Defendant has defaulted in his child support obligations for the Subject Child in Plaintiff's custody.
The relevant provision of the parties' Stipulation of Settlement pertaining to the rights and obligations for child support is set forth in Article VIII "Child Support"[FN1], Paragraphs 1 and 10, which provide:
1.Except as provided for in paragraph 10 of this Article, the parties agree that since each party has primary physical custody of one child, neither party shall be responsible for any obligation of child support to the other.
*** [*4]
10.In the event there is a change in the existing custody arrangement, and both children reside with either the Mother or the Father, that parent shall be entitled to seek a de novo review of the basic child support obligation established herein. In the event the custodial arrangement remains unchanged, either party may seek a denovo [sic] review of the child support provision of this agreement as of April 1, 2012 based on their respective earnings at the time.
There can be no real dispute that the parties' clear intent was to waive the child support obligations each would have to the other because each party has primary physical custody of one child.
Plaintiff's contention that language in Paragraph 9 of the parties' Stipulation of Settlement indicates that Defendant was to pay child support to her is not supported by a reading of the Stipulation of Settlement as a whole. Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342 (1955). Although Paragraph 9 includes the following language, "In consideration of the equitable distribution, provided for herein, the Husband has prepaid one (1) year of child support at the rate of $600.00 per month for the months of December, 2010 until October, 2011 and . . . . [t]hereafter the payment shall be made directly to the Wife," the Court rejects Plaintiff's argument that this one sentence negates the clear intention expressed by the parties in the Stipulation of Settlement to waive the child support obligations of each because each party has physical custody of one of the Subject Children.
The parties expressly waived child support in the provision of the Stipulation of
Settlement that pertains to child support. Indeed, the Stipulation of Settlement specifically articulates the factors upon which the parties based their determination to opt out of the CSSA guidelines for child support, including the fact that each party has custody of one of the Subject Children. Stipulation of Settlement, CSSA Article, ¶ 7. In addition, the Stipulation of Settlement provides that each party may claim one child as a dependent on his or her tax returns from the 2009 tax year forward. Article X "Taxes", ¶ 4. Taken together, the provisions express the unambiguous intent of the parties to waive any obligation to provide child support to the other.
To the extent that the final sentence of Paragraph 9 of the Child Custody Article can be interpreted to indicate that Defendant, going forward, has a current obligation to pay child support to the Plaintiff, such provision is irreconcilable with the prior provision in Paragraph 1. Since the two paragraphs are irreconcilable, the Court accepts the first - Paragraph 1 - which is consistent with Paragraph 10 and CSSA Article, ¶ 7, and rejects that portion of the second - Paragraph 9 - which is wholly inconsistent with the other provisions of the Stipulation of Settlement. Brennan, 153 F. Supp. 2d at 415-16 (where two clauses irreconcilable, first clause will be accepted and second rejected); Honigsbaum's, 178 AD2d at 704; Contacare, 2007 NY Misc. Lexis 3155, ***8-9.
In addition, Paragraph 1 is a very specific provision, providing that the parties waive child support because each party has primary physical custody of one child. In contrast, the sentence at issue in Paragraph 9 is quite general, simply stating the general rule as to where any child support payments would be paid. Since a specific provision governs over a general provision, the waiver of child support in Paragraph 1 governs and is accepted by the Court. Muzak Corp., 1 NY2d at 46; Sumitomo Bank of New York Trust Co., 278 AD2d at 404. [*5]
Accordingly, Plaintiff's application for a money judgment for child support arrears is denied.
B.Disability Pension
Paragraph 8 of Article IX of the parties' Stipulation of Settlement governs the parties' rights and obligations with respect to Defendant's disability pension provided by the Defendant's employment with the New York City Police Department ("disability pension"):
The Wife shall receive her one-half (½) share of the marital portion of the Husband's disability pension, as provided through the Husband's employment with the City of New York Police Department in accordance with Majausakas, from September 20, 1990, the date of the marriage to September 2009, the date of commencement of this action. The Wife shall receive her portion determined to be $1,339.73, plus any increases or decreases, cost of living, or any other supplements attributable to the Wife's share. Said transfers shall be tax free and shall be accomplished by virtue of a Qualified Domestic Relations Order . . . . [which] shall be prepared by Robert Guarnera . . . . Until such time that the QDRO is prepared and in full force and effect and commencing May 1, 2011, the Husband shall pay to the Wife directly her share of his monthly pension in the sum of $1,339.73 per month and continuing on the 1st day of each month thereafter.
Stipulation of Settlement, Article IX, ¶ 8 (emphasis added).
1.Plaintiff's Application for Amended QDRO is Denied
Plaintiff's contention that she is entitled to receive $1,339.73 per month, going forward, as her share of Defendant's disability pension, pursuant to the Stipulation of Settlement, is incorrect.
A plain reading of the Stipulation of Settlement shows that the parties intended to equally divide the Defendant's disability pension. The parties expressly agreed that Plaintiff "shall receive her one-half (½) share of the marital portion of the Husband's disability pension." Stipulation of Settlement, Article IX, ¶ 8.
The QDRO that was filed on January 27, 2012, directed the pension plan administrator to calculate Plaintiff's portion pursuant to a prescribed formula to give Plaintiff half of the marital portion of the pension. The result of this formula was a monthly payment to Plaintiff of $1,089.96, which Plaintiff has received directly from the pension plan since March 2012.
The $1,339.76 amount set forth in the Stipulation of Settlement was an amount determined at the time that the parties entered into the agreement in May 2011, and was to be paid until such time that the QDRO was prepared and in full force and effect.
Indeed, the Stipulation of Settlement Agreement contemplated that the amount pre-determined by the parties might increase or decrease, providing, "The [Plaintiff] shall receive her portion determined to be $1,339.73, plus any increases or decreases, cost of living, or any other supplements attributable to the Wife's share." (Emphasis added).
Accordingly, pursuant to the express terms of the Stipulation of Settlement, Plaintiff is not entitled to receive greater than half of the marital portion of Defendant' s disability pension. [*6]
In addition, the Court notes that Plaintiff's counsel filed the Disability QDRO with the Court on Notice of Settlement. Submission of the QDRO using the formula which resulted in Plaintiff receiving half the marital portion of the disability pension, or $1,089.96 per month, effective March 2012, is further evidence that of the parties intent that the $1,339.76 amount was intended as a temporary amount to be paid until the QDRO was prepared and in ful force and effect.Jacobson v. Sassower, 66 NY2d 991, 993 (1985)(where there is ambiguity, a contract is construed most strongly against party who prepared it); Computer Associates Intern., Inc. v. U.S. Balloon Mfg. Co., Inc., 10 AD3d 699, 700 (2d Dept. 2004)(any ambiguity in contract language is construed against the drafter).
Accordingly, Plaintiff's application seeking to have the QDRO vacated or amended is denied.
2.Plaintiff's Application for Unpaid
Disability Pension Payments is Granted
Plaintiff's application for a money judgment against Defendant for disability pension arrears is granted to the extent that the Court finds that Defendant is liable to Plaintiff for two months of arrears for the months of December 2011 and January 2012, in the amount totaling $2,679.52.
Pursuant to the Stipulation of Settlement, Plaintiff was entitled to receive $1,339.76 per month until such time that the QDRO was filed and in full force and effect. The QDRO was filed on January 27, 2012, and accordingly, was in full force and effect as of that date. See Crystal Cove Seafood Corp. v. Chelsea Harbor LLC, 2007 NY Misc. Lexis 3972, *3, 237 N.Y.L.J. 100 (Sup. Ct., Nassau Co. 2007) (entry of order is the condition precedent to its validity), aff'd, 47 AD3d 670 (2008).
Pursuant to those terms, Plaintiff received $1,339.76 each month from
Defendant for the months May through August 2011. In addition, for the months of September, October and November 2011, Plaintiff deducted the sum of $4,019.19 (3 months X $1,339.73) from funds she owed to Defendant pursuant to the Stipulation of Settlement. Plaintiff did not receive her share of the Disability Pension in December, 2011 or January or February 2012. In March 2012, Defendant began receiving the amount calculated by the pension administrator equal to her one half share.
Since the QDRO was filed and in full force and effect as of January 27, 2012, Defendant is obligated to pay Plaintiff $1,339.73 for the two months prior to such filing for which he failed to make that payment - December 2011 and January 2012 - totaling $2,679.52.
3.Defendant's Cross-Claim for Overpayment
of the Disability Pension is Denied
Defendant's cross-claim for $1,998.16, for the amount he claims he overpaid Plaintiff for the disability pension from May 2011 through January 2012, is denied. The parties had agreed that the monthly amount due to Plaintiff, until the QDRO was filed and in full force and effect, would be $1,339.73, per month. Accordingly, pursuant to the express terms of the Stipulation of Settlement, Defendant was obligated to pay [*7]Plaintiff $1,339.76 a month until January 2012, when the QDRO was filed.
C.Medical Insurance Reimbursement Checks
Plaintiff's application for a money judgment against Defendant for withholding medical insurance reimbursement checks which were sent directly to Defendant is granted. Defendant is ordered to contact his insurance company to request reissuance of such checks.
Pursuant to the parties' Stipulation of Settlement, Plaintiff was entitled to receive medical coverage through Defendant's health insurance coverage. Stipulation of Settlement, Article XI, ¶ 1. Pursuant to the Stipulation, Plaintiff is obligated to cover all costs associated with continuing such coverage via COBRA. Id.
Defendant does not dispute that the medical insurance company, Group Health Incorporated ("GHI"), issued two checks representing reimbursement for medical services provided to Plaintiff, for which Plaintiff paid. Rather, he claims that he did not receive the two checks.
Accordingly, Defendant is ordered to contact GHI within ten days to request that GHI reissue these checks. Upon receipt of the reissued checks, Defendant is ordered to promptly turn the checks over to Plaintiff. If the insurer refuses to re-issue the checks, Defendant is ordered to reimburse Plaintiff for the $1,040.00. See Sporn v. MCA Records, Inc. 58 NY2d 482, 487 (1983) (cause of action for conversion lies if there is an interference with a person's possessory rights); Banks, Glen, New York Contract Law § 21:69 (West 2006)(withholding of property is a conversion)
C.TimeWarner 401k and Fidelity IRA
Defendant's cross-motion for an order directing Plaintiff to transfer Defendant's share of certain retirement accounts to him is granted.
Paragraph No. 3 of Article IX of the Stipulation of Settlement sets forth the parties' respective rights and liabilities with respect to the TimeWarner 401k and Fidelity IRA:
3.It is the intention of the parties to equally divide the marital portion of all of their retirement assets. The marital portion of each parties [sic] interest in the following accounts shall be divided equally between the parties:[FN2]
***
. . . . The parties designate Robert Guarnera of Pension Actuaries, Inc. ("Guarnera") to equally divide the marital portion in the aforesaid retirement benefits and any annuity and/or deferred compensation plans to which the Husband may be entitled; specifically and assets accumulated or additional amount contributed to the [*8]accounts for the period from the date of the marriage (September 22, 1990) up through and ind including the date of commencement of this action (September 18, 2009), calculating losses and/or gains on the marital portion only through the date of division. The parties shall equally share all cost in connection with the division of the aforesaid accounts. The parties shall be equally obligated for the fees incurred in connection therewith.
Plaintiff's obligation to transfer to Defendant his share of the TimeWarner 401k and two Fidelity IRA accounts is not in dispute. Plaintiff has presented no competent evidence to show that the transfer from the TimeWarner 401k and the transfer from the Fidelity IRA account numbered Y484-108537 were made to Defendant. Halley-Boyce v. Boyce, 2013 NY Slip Op. 5047, 2013 NY App. Div. Lexis 4955, *5 (2d Dept. 2013) (failure to produce competent evidence to support claim warrants denial of claim).
The only documentary evidence submitted by Plaintiff on this issue is a June 15, 2012, letter from Fidelity Investments to Plaintiff, confirming that $167,588.00 was transferred from her Fidelity account ending in x4630 to Defendant on March 23, 2012. Plaintiff has provided no such statement for either the Fidelity Account No. Y484-108537 or the TimeWarner 401k.
The handwritten notes submitted by Plaintiff as Exhibit A to her Affidavit of August 2, 2012, which Plaintiff contends are the calculations of Robert Guarnera of Pension Actuaries, Inc., to determine the amounts due to each party from the retirements accounts of both parties, are insufficient to establish that the appropriate transfers of assets took place. People v. Ford, 46 NY2d 1021, 1023 (1979)(unverified letters and records, together with handwritten notes of an investigator, are not evidentiary facts). Even if the handwritten notes were competent evidence, they fail to support Plaintiff's contention that Defendant received the full amount to which he is entitled to pursuant to the parties' Stipulation of Settlement.
Accordingly, the Court orders that Plaintiff undertake and cooperate with all steps necessary to effectuate the transfer to Defendant of one half of the marital portion of Plaintiff's Fidelity IRA and Time Warner IRA as of February 2011, within thirty days of the date of this Decision and Order.
D.D's Custodial Accounts
Defendant's cross-motion for an order that Plaintiff provide the account numbers and recent account statements for certain accounts held for the benefit of the parties' son D is granted.
Pursuant to Article IX, Paragraph 7 of the Stipulation of Settlement, Plaintiff is obligated to substitute Defendant as custodian for certain accounts held for the benefit of their son D: "The Wife shall provide to the Husband all of the account information in regard to D[ ]'s accounts as set forth above and substitute the Husband as custodian thereon."
Plaintiff's contention that she has taken all steps necessary to effectuate the transfer by substitution of Defendant as custodian of the accounts is wrong. Plaintiff's failure to inform Defendant of her resignation as custodian, as well as her failure to provide Defendant with the account numbers of such accounts, has restricted [*9]Defendant's ability to be named as custodian.
Plaintiff is directed to provide to Defendant the account numbers of D's accounts, as defined in the Stipulation of Settlement, within 10 days of this Decision so that Defendant may make application to be listed as custodian. Plaintiff is further directed to provide to Defendant the last 6 months of account statements for such accounts within 30 days of this Decision.
E.Aruba Timeshare
Defendant's cross-motion for a money judgment for the value of the weeks that he did not use the parties' Aruba timeshare in 2011 and 2012 is denied.
Pursuant to the Stipulation of Settlement, the parties' timeshare in Aruba was to be transferred to the Plaintiff, as sole owner, but Defendant was permitted to use it for one week in 2011 and 2012.The Wife shall retain as her sole property, the timeshare located in Aruba subject to the following, and the Husband waives all right, title and interest in same. The Husband shall execute any and all documents necessary to effectuate such transfer immediately upon execution of this Agreement, except as set forth herein. The Wife shall be solely responsible for all payments due on such Timeshare, and shall defend and indemnify the Husband with regard to same. The Husband however, shall be permitted to utilize the larger portion of the time share for one week in 2012, + the smaller portion in 2011 for one week.Stipulation of Settlement, Article IX, ¶ 15.
Defendant's claim that he was unable to use the timeshare in 2011 and 2012 is unavailing. Defendant could have contacted the timeshare representatives himself to make such arrangements for his use of the timeshare.
The plain language of the parties' Settlement Agreement places the onus on Defendant to undertake the steps necessary to effectuate the transfer of the Aruba timeshare. Accordingly, it was unreasonable for Defendant to believe that he needed Plaintiff to contact the timeshare representatives regarding his use of the timeshare. Defendant's application for a money judgment for the value of the weeks that he did not use the timeshare in 2011 and 2012 is denied.
F.Defendant's Claim for the Remaining Amount of his
Portion of Equitable Distribution is Granted
The Court notes that Plaintiff reduced the amount of funds she was required to pay to Defendant as equitable distribution by $600.00 as claimed child support arrears. As this Court has determined that neither party is liable to the other for child support (see Section A, supra), Defendant's cross-claim for $600.00 for the amount of money Plaintiff improperly deducted from an equitable distribution payment for claimed child support arrears is granted.
G.Each Party's Claim for Attorney's Fees is Denied
It is within the Court's discretion to award counsel fees in post-judgment proceedings involving enforcement. Domestic Relations Law § 237; DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881 (1987). The standard for awarding counsel fees includes an inquiry in to the nature and extent of services, the performance of counsel under the circumstances, the difficulty of the case, the results achieved and counsel's [*10]reputation in the legal community. Id.; see also Barnes v. Barnes, 54 AD2d 963 (2d Dept. 1976); McCann v. Guteri, 100 AD2d 577 (2d Dept. 1984). The party seeking the requested fees does not need to prove an inability to pay the fees, although the Court is guided by the relative financial circumstances of the parties and the merits of the matter before the Court. DeCabrera at 881.
Here, the Court finds that no award of attorney's fees is warranted in this matter. As an initial matter, the Court notes that a large portion of Plaintiff's motion has been denied, as has much of Defendant's cross-motion. The Court also finds that, in light of the relative circumstances of each party and the nature of the litigation, no award of attorney's fees is merited.
The Court considered the following submissions by the parties in deciding this motion: Order to Show Cause, filed June 6anuary 27, 2012 and Affidavit of Maria Rodriguez and exhibits thereto; Affidavit of Carlos Rodriguez in Opposition to the Order to Show Cause, filed March 22, 2012 and exhibits thereto; Reply Affidavit of Maria Rodriguez, filed March 29, 2012, and exhibits thereto.
This constitutes the Decision and Order of this Court.
Dated: White Plains, New York
July 31, 2013
____________________________HON. COLLEEN D. DUFFY
Justice of the Supreme Court
Footnotes
Footnote 1: The Court notes that the Stipulation of Settlement lists two Article VIIIs, the first entitled Child Support" and the second entitled "Compliance with the Child Support Standards Act Act.'" For clarity in this Decision, the Court will refer to the first such Article as the "Child Support Article and the second such Article as the "CSSA Article."
Footnote 2: The parties' Stipulation of Settlement lists three separate accounts, a TimeWarner 401K, valued at $32,929.89 as of 12/09, a Fidelity IRA, account number [full numbers omitted] 4630, valued at $311,000.00 as of 2/11, and a second Fidelity IRA, account number [full numbers omitted] 8537, valued at $421,354.51 as of 2/11. There is no dispute that Defendant was entitled to his portion of the marital portion of each of these accounts.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
