Susan B. v Richard C.
Annotate this CaseDecided on October 9, 2013
Supreme Court, Westchester County
Susan B., Plaintiff,
against
Richard C., Defendant.
7228-05
Christine Moccia, Esq.
Attorney for Plaintiff
P.O Box 93
Chappaqua, New York 10514
Wilson Soto, Esq.
Soto, Sanchez & Negron, LLP
Attorney for Defendant
281 South Broadway
Yonkers, New York 10705
Colleen D. Duffy, J.
On February 28, 2013, Defendant Richard C. ("Defendant") filed a notice of motion, affidavit and exhibits thereto, seeking a money judgment in the amount of $59,000.00 pursuant [*2]to the terms of the parties' Judgment of Divorce, filed October 23, 2006 ("Judgment of Divorce"), which was incorporated but not merged with the parties' stipulation of settlement, dated June 8, 2006 ("Stipulation of Settlement").
On April 17, 2013, Plaintiff Susan B. ("Plaintiff") filed an affidavit, exhibits thereto, and a memorandum of law in opposition to Defendant's motion.
BACKGROUND OF THE ACTION
The parties were married in New York State on April 20, 1996 and have one child, A. (hereinafter, the "Subject Child").
On June 8, 2006, the parties entered into the Stipulation of Settlement to resolve the issues then pending via a transcribed agreement in open court. Pursuant to the Stipulation of Settlement, Defendant was required to pay spousal support to Plaintiff, in the amount of $2,000.00 per month, from the first day after he vacated the marital residence at [], New York (the "Marital Residence"), for a period of 30 months, as well as child support in the amount of $1,200.00 per month. With respect to the issue of equitable distribution, the Stipulation of Settlement expressly provides that Plaintiff and the Subject Child have sole and exclusive use and occupancy of the Marital Residence; Defendant was to vacate the Marital Residence within 90 days from the date of the Stipulation of Settlement.
The Stipulation of Settlement also expressly provides that Plaintiff's continued residency in the Marital Residence was conditioned upon Plaintiff, "prior to the expiration of the 30-month period in which [Defendant] is obligated to pay spousal support, . . . mak[ing] best efforts to refinance the marital home and secure financing in her sole name." Stipulation of Settlement, p. 17. The Stipulation of Settlement indicates that at the time the parties entered into the agreement, the Marital Residence had two mortgages and that both of the mortgages were in the names of both of the parties as mortgagees. Id.
The Stipulation of Settlement also provides that "if within that 30-month period in which [Defendant] is obligated to pay spousal maintenance, [Plaintiff] cannot obtain financing to her satisfaction, then the parties agree that immediately thereafter the house shall be placed on the market for sale at the prevailing market rates . . . ." Id. at 18.
The Stipulation of Settlement also provides that the parties, having taken into consideration various financial assets such as coin collections, automobiles, pension plans, real estate investment trusts, and thrift savings plans in factoring a distributive award, agreed that Defendant is entitled to a money judgment in the sum of $59,000.00 as against Plaintiff. Stipulation of Settlement, pp. 20-21. The Stipulation of Settlement also provides that, in the event that Plaintiff was unable to refinance the mortgages or remove Defendant's name from the mortgages on the Marital Residence, Defendant would tender a quitclaim deed to Plaintiff for the Marital Residence and then would file a money judgment (in the amount of $59,000.00) with the County Clerk. Stipulation of Settlement at 23.
Pursuant to the Stipulation of Settlement, the parties also agreed that the monthly spousal support and child support, totaling $3,200.00, would be paid by Defendant to the outstanding mortgages on the Marital Residence and any remaining funds would be given to Plaintiff. Stipulation of Settlement at 24. Plaintiff has averred that Defendant never paid any funds to her. Plaintiff's Affidavit, ¶ 14. [*3]
Plaintiff has averred that, thereafter, Defendant moved out of the Marital Residence on September 30, 2006. Plaintiff Affidavit, ¶ 12. According to Plaintiff, Defendant's obligation to pay child support and spousal support was to begin on October 1, 2006, and continue for 30 months through March 1, 2009.[FN1] Id.
Plaintiff has averred that in late 2008 and in 2009 and 2010, she sought to refinance the existing mortgages or assume the existing mortgages but was unable to do so due to Defendant's poor payment history. Plaintiff's Affidavit, ¶¶ 13-15. Plaintiff also has averred that, as early as February 2009, she made payments toward the mortgage even though Defendant was obligated to make such payments through March 2009. Plaintiff's Affidavit, ¶ 16.
In April 2010, Defendant obtained an order from Family Court against Defendant for payment of child support arrears from Plaintiff. Plaintiff's Affidavit, ¶ 22, Ex. J.
Despite seeking arrears for child support from Defendant, Plaintiff apparently never sought arrears for spousal support.
Plaintiff has averred that the Marital Residence is in foreclosure due to Defendant's failure to pay the mortgage payments in 2008. Plaintiff's Affidavit, ¶¶ 16, 18, 20.
CONCLUSIONS OF LAW
For the reasons set forth below, Defendant is awarded a money judgment in the amount of $59,000.00, conditioned upon his providing satisfactory proof to the Court that he has tendered to Plaintiff a quitclaim deed and all necessary documents to provide sole title to the Marital Residence to Plaintiff.
A.Plaintiff's Obligation Under the Parties' Agreement Remains
Plaintiff's claim that her obligation to perform the terms of the Stipulation of Settlement is obviated by Defendant's breach of the Stipulation of Settlement is unavailing as she is barred from claiming that he failed to make the requisite spousal support payments required by the parties' agreement. Moreover, Plaintiff failed to seek rescission of the parties' agreement when she filed an action in Family Court in 2010 for payment of arrears and elected to continue receiving child support and remained in the Marital Residence. Thus, Plaintiff waived her right to seek rescission for such prior purported breaches of the Stipulation of Settlement by Defendant.
1.Plaintiff is Barred from Claiming that Defendant
Failed to Pay Spousal Support
It is well-settled that 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 Dept. 2008). The terms of a separation agreement incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties. [*4]Gravlin v. Ruppert, 98 NY2d 1, 5 (2002), citing Merl v. Merl, 67 NY2d 359 (1986).
Although the right to rescission to a contract generally exists as an alternative remedy where there has been a material breach of a contract (see e.g., Manning v. Manning, 97 AD2d 910 (3d Dept. 1983)), here, no such remedy exists as Plaintiff is legally precluded from contending that Defendant materially breached the agreement by failing to make his spousal support payments.[FN2] Carella v. Collins, 272 AD2d 645, 646-47 (3d Dept. 2000); see also Shickler v. Shickler, 97 AD2d 461 (2d Dept. 1983) (right to alimony payments waived by failure to demand over extended period of time).
The doctrine of res judicata, or claim preclusion, provides that "as to parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action." Hoey v. Kuchler, 249 AD2d 365 (2d Dept. 1998). Res judicata precludes not only those issues actually litigated in the prior proceeding, but also those which may have been raised. Fogel v. Oelmann, 7 AD3d 485 (2d Dept. 2004); Bolotnikov v. Bolotnikov, 262 AD2d 318 (2d Dept. 1999) (subsequent proceeding may not be used to litigate matters that were or should have been determined in prior proceeding); Carella at 526. A judgment in one action is conclusive in a later one as to matters actually litigated and those that should have been litigated. Id.
The purpose of res judicata is to reduce litigation and conserve the resources of the court and litigants by discouraging redundant litigation on the grounds that once a person has "had their day in court," to wit, had a full and fair opportunity to litigate a particular issue, that person may not be permitted to do so again. Wareham v. Wareham, 34 AD2d 647 (2d Dept. 1970).
In this case, Plaintiff has averred that she commenced a proceeding in Family Court against Defendant for child support arrears more than two years ago and obtained a confession of judgment against Defendant in that matter in the amount of $3,739.93 in April 2010. Plaintiff's Affidavit, ¶ 22, Ex. J. Any claim by Plaintiff that Defendant failed to timely pay some or all of the 30 months of spousal support (which were supposed to pay the mortgage as required by the parties' Stipulation of Settlement) either was or should have been brought in the Family Court proceeding in 2010. Wareham at 647. Plaintiff's failure to do so bars her from raising the claim in this proceeding. Id.
Plaintiff also has averred that, as early as February 2009, she was aware of Defendant's failure to pay the requisite spousal support required by the parties' Stipulation of Settlement — which payments were supposed to have been paid over a 30 month period of time from September 2006 through March 2009. Plaintiff's Affidavit, ¶¶ 14, 16. There can be no dispute that Plaintiff was well aware of Defendant's purported failure to pay those funds when she commenced the action in Family Court in 2010. As such, she is now precluded from contending in this proceeding that he failed to make such payments. Wareham at 647.
Accordingly, as Plaintiff is barred from asserting that Defendant's non-payment of spousal support is a material breach requiring rescission of the parties' Stipulation of Settlement, [*5]Plaintiff's obligations under the agreement remain.
2.Plaintiff Waived Her Right To Rescind the Agreement
Where a non breaching party chooses to continue with a contract, that party cannot later renounce the election to continue and seek to terminate the agreement on the basis of a prior breach. Stempel v. Rosen, 140 AD2d 326, 329 (2d Dept. 1988)(right to rescind a contract is barred by subsequent acceptance of benefits growing out of the contract); Emigrant Industrial Savings Bank v. Willow Builders, Inc., 290 NY 133, 144 (1943).
Although rescission of the parties' Stipulation of Settlement likely was a remedy available to Plaintiff at the time in which she contends that Defendant failed to pay child and/or spousal support, Plaintiff's acceptance of subsequent payments of child support by Defendant after she had obtained the confession of judgment for Defendant's non-payment constitutes a waiver of her right to now elect such remedy. Stempel at 329; Emigrant Industrial at 144.
Here, Plaintiff waived her right to rescission by continuing to accept child support payments pursuant to the parties' Stipulation of Settlement after the confession of judgment was issued and by remaining in the Marital Residence.
B.The Contract is Clear as to the Parties' Intent
Plaintiff's contention that the parties intended that Defendant receive $59,000.00 only upon sale of the Marital Residence or refinancing is not supported by the plain language of the parties' Stipulation of Settlement.
A court should interpret the contract in accordance with its plain and ordinary meaning. Colucci v. Colucci, 54 AD3d 710, 712 (2d Dept. 2008). "[W]hen interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized. Winski v. Russo Kane, 33 AD3d 697 (2d Dept. 2006), citing Matter of Schiano v. Hirsch, 22 AD3d 502 (2d Dept. 2005); Fetner v. Fetner, 293 AD2d 645, 645-646 (2d Dept. 2002). Where the language of the agreement is "clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence." Rainbow v. Swisher, 72 NY2d 106, 109 (1988); Perry v. Perry, 13 AD3d 508, 509 (2d Dept. 2004). The Judgment of Divorce, which incorporates but does not merge with the provisions in the parties' Stipulation of Settlement, also binds the parties to its terms. Rainbow at 110.
Contrary to Plaintiff's contention, the plain language of the Judgment of Divorce and the Settlement Agreement evidence that the sale or refinance of the Marital Residence was not considered by the parties when they agreed that Defendant would receive $59,000.00. Instead, Defendant's distributive award of $59,000.00 was derived from the parties' consideration of a variety of marital assets. Specifically, the Stipulation of Settlement provides, in relevant part, as follows:
The parties have taken into consideration various financial assets such as coin collections, automobiles, pension plans, real estate investment trusts, thrift savings plans in factoring in a distributive award. In that effort, the parties have agreed that [Defendant] shall be entitled to a distributive award in the amount of . . . $59,000. And that at the end of the 30-month period he shall be entitled to a money judgment, and that the clerk of the court — the clerk of the Supreme Court [*6]or the Westchester County Court shall be authorized to enter a money judgment in the sum of $59,000 in favor of [Defendant] as against [Plaintiff].
Stipulation of Settlement, pp.20-21.
Moreover, the Court notes that commentary from Plaintiff's own counsel when the Stipulation of Settlement was spread upon the record undermines Plaintiff's current contention that refinancing or sale of the house was a condition precedent to Defendant's receipt of the $59.000.00 distributive award. Specifically, when Defendant's counsel was setting forth the terms regarding the sale of the house, Plaintiff's own counsel interjected to note that the house would not need to be sold if Defendant received the $59,000.00 within the 30 month period. Stipulation of Settlement, p. 18.
The plain language of the Stipulation of Settlement requires Defendant to provide to Plaintiff a quitclaim deed and any other documentation necessary to ensure sole title to the Marital Residence to Plaintiff before any money judgment is filed with the County Clerk's office. Stipulation of Settlement, pp. 23-24. This provision in the Stipulation of Settlement requiring Defendant to surrender his interest in the Marital Residence to Plaintiff before filing the money judgment also is evidence that the parties did not intend to have issuance of Defendant's money judgment conditioned upon sale of the Marital Residence.
Thus, the plain language of the Stipulation of Settlement, including statements by Plaintiff's own counsel, is evidence that Defendant's right to a money judgment was not conditioned upon the sale of the Marital Residence or Plaintiff's refinancing of the mortgage thereon.
CONCLUSION
For the foregoing reasons, Defendant is awarded a money judgment in the amount of $59,000.00, conditioned upon his providing satisfactory proof to the Court that he has tendered to Plaintiff a quitclaim deed and all necessary documents to provide sole title to the Marital Residence to Plaintiff. Defendant is directed to submit a proposed money judgment, on notice, to the Court, together with proof of said quitclaim deed and any other necessary documents to transfer title of the Marital Residence to Plaintiff.
The Court has considered the following submissions of the parties: Defendant's notice of motion, affidavit and exhibits thereto, dated February 28, 2013; Plaintiff's affidavit, exhibits thereto, and a memorandum of law in opposition to Defendant's motion, dated April 17, 2013.
This constitutes the Decision and Order of this Court.
DATED: White Plains, New York
October 9, 2013
HON. COLLEEN D. DUFFY
JUSTICE OF THE SUPREME COURT
Footnotes
Footnote 1: Defendant contends that he moved out on or before September 1, 2006, and that the 30 month period expired after February 2009. Defendant's Affidavit, ¶ 10. The actual date of commencement of Defendant's 30 month obligation to pay spousal support is not material to this Court's decision in this matter.
Footnote 2: The Court also notes that Plaintiff failed to comply with the terms of the parties' Stipulation of Settlement which required her to sell the house at the expiration of 30 months if she hadn't refinanced. Stipulation of Settlement, pp.18-19.
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