Hersh E. v Sandra E.

[*1] Hersh E. v Sandra E. 2014 NY Slip Op 51920(U) Decided on December 10, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2014
Supreme Court, Kings County

Hersh E., Plaintiff(s),

against

Sandra E., Defendant(s).



xxxx



Mark M. Holtzer, Esq.Snitow Kanfer & Holtzer, LLP

Attorney for Plaintiff

575 Lexington Avenue

New York, New York 10022

212-317-8500

Abe H. Konstam, Esq.

Mallow, Konstam, Mazur,

Bocketti & Nisonoff, P.C.

Attorney for Defendant

321 Broadway

New York, New York

212-264-7990
Jeffrey S. Sunshine, J.

Upon the foregoing papers, in motion sequence number 5, defendant S.H.E. moves for: (1) a money judgment in the sum of $2,590.10 for the 2010 — 2011 school year; (2) a money judgment in the sum of $11,105.23 for the 2011 — 2012 school year; (3) a money judgment in the sum of $5,616.37 for the 2012 — 2013 school year; (4) a money judgment in the sum of $44,962 for the children's Seminary costs for the 2013 — 2014 school year or, in the alternative, a money judgment in the sum of $22,481, representing plaintiff H.E.'S 50% share of the children's college expenses; (5) a money judgment in the sum of $2,545 for the children's camp expenses; and (6) a money judgment in favor of Mallow, Konstam, Mazur, Bocketti & Nisonoff, P.C., in the sum of $10,000 for counsel fees, with interest from the date of judgment, together with costs and disbursements.

Facts and Procedural Background

The parties were married on **** in a religious ceremony and on ****** in a civil ceremony. They have three children who recently finished a year at Seminary in Israel.

On July 17, 2003, plaintiff commenced a divorce action. The parties thereafter reconciled. In an effort to avoid future litigation regarding finances and issues relating to the children in the event that the parties later decided to divorce, they entered into a Post Nuptial Agreement dated March 11, 2004 (the Agreement). The parties' attempt to reconcile thereafter proved futile and plaintiff commenced the instant action for divorce on June 23, 2008.

On January 21, 2009, plaintiff filed a motion seeking to enforce the parties' Agreement. On April 23, 2009, defendant filed a cross motion seeking an order vacating the Agreement and ancillary relief. By decision of this court dated August 17, 2009, the validity of the Agreement was upheld, with the exception of those portions relating to plaintiff's basic child support obligation, which the court found were not in compliance with the Child Support Standards Act (the August 2009 Decision). On April 7, 2010, the parties entered into a stipulation addressing equitable distribution, maintenance, child support and other ancillary issues (the Stipulation).

On May 13, 2010, a judgment of divorce that incorporated but did not merge the Agreement and the Stipulation was signed.

Defendant's Request for Arrears

Defendant brought this motion seeking to enforce certain provisions of the Agreement [*2]referring to plaintiff's obligation to pay for the children's education. Pursuant thereto, plaintiff is obligated to pay:

"All educational expenses of the parties' three minor children including fees, tuition and expenses through the children graduating from a secondary educational institution such as a yeshiva or high school."

(Agreement, Article [III][B][2], p 15).

Defendant also relies upon a provision of the Agreement that provides:

"As of the date the parties entered into this Agreement, the parties intend to establish college funds in each of the parties' children's names to be spent for college tuition, fees, expenses, applications, preparatory courses and materials with the parties to contribute to such funds consistent with their marital lifestyle."

(Agreement, Article [III][E], p 15).

The Children's High School Tuition

Defendant alleges that while the children were in their respective schools for the 2010-2011 school year, she paid a total of $3,090 with respect to their expenses. She claims that plaintiff reimbursed her for only $500 of this money. She thus concludes that plaintiff owes her $2,590.10. During the 2011 - 2012 school year, defendant contends that she paid a total of $11,105.23 for the three children, including the cost of SAT programs and preparatory courses. She alleges plaintiff did not reimburse her for any of this money. During the 2012 - 2013 school year, defendant contends that she spent a total of $5,616.37 for the children, including preparatory college programs and testing. Again, she claims that plaintiff did not reimburse her for any of these expenses.

The Children's Education at Seminary

In support of this branch of the motion, defendant asserts that most orthodox Jewish girls, upon completion of high school, go to Seminary in Israel for one year. Although defendant advised plaintiff that their daughters would be going to Seminary, plaintiff refused to pay any of the costs, despite being asked several times.

Defendant alleges that the cost for one daughter for the 2013 — 2014 school year was $24,000, plus $1,783 for traveling costs. She further asserts that this daughter has been accepted to the City College of New York, which costs approximately $25,000 for the year. Defendant thus argues that the cost of Seminary, where the daughter received college credit, roughly approximates the cost of one year at college; since she received college credits, the parties' save a year of college costs. This child received $13,823 in scholarships and grants to attend Seminary, leaving a balance owed of $11,880.

The second daughter attended a Seminary that cost $20,000 for the year, with [*3]traveling costs of $1,835, for a total cost of approximately $21,835 for the year.

The third daughter attended a Seminary where the tuition was $23,800 and traveling expenses were $1,865. The college that she has been accepted to also costs approximately the same amount as did the Seminary. This daughter received scholarships and grants totaling $14,398, leaving a balance of $11,247.

It is plaintiff's contention that plaintiff is responsible for 100% of the children's tuition and expenses incurred in attending Seminary, if Seminary is considered to be a continuation of high school, i.e. $44,962 ($11,880 + 21,835 + 11,247). In the alternative, if Seminary is viewed as the first year of college, defendant alleges that plaintiff is obligated to pay 50% of the cost, i.e., $22,481. Defendant goes on to opine that plaintiff is a very well-to-do man who can afford to pay for his children's education.

Camp

Defendant further contends that plaintiff is required to pay for all of the children's camp expenses and extracurricular activities, not to exceed the cost of $1,000 per child per year (Stipulation, Article III[B][3], p 15). Defendant alleges that the camp expenses for 2011, 2012 and 2013 for all three children total $2,545. Since each year's total is less than $1,000 per child, or $3,000 per year, defendant contends that plaintiff is required to reimburse her in the full amount of $2,545.

Plaintiff's Opposition

In opposition, defendant asserts that he has remained current in paying his child support obligations. He argues, however, that pursuant to the Agreement, he is obligated to pay only tuition and other education related fees through high school. He contends that the Agreement does not obligate him to pay for the other expenses for which defendant claims he is responsible, such as school trips and supplies. Moreover, to date, defendant has failed to provide him with any documentary evidence to establish that she did, in fact, incur costs in the amount of $19,311.70 ($2,590 + $11,105 + $5,616) that she seeks to recover. Instead, she provides him with spreadsheets that she prepared. Plaintiff further alleges that although he and defendant have joint custody of the children, she has never consulted with him prior to making the expenditures for which she now seeks reimbursement as, for example, when she purchased a laptop for each of the children at the cost of $1,199 a piece, plus protection plans in the amount of $249 each. Plaintiff also contends that defendant has engaged in "sabotaging" his relationship with the children.

Plaintiff goes on to argue that although defendant claims that Seminary is an extension of high school, it is actually an independent educational institution offering a curriculum focused on Judaic studies that orthodox women attend after graduating from high school. In this regard, the Agreement does not obligate him to pay for Seminary or college. He contends that a provision requiring either party to pay for college was not included in the Agreement because neither one of them has a post-secondary school education and neither could afford to pay for college. He further asserts that defendant's reliance upon the above quoted provision of the Agreement that states that each of them will establish college funds [*4]for the children is misplaced, since it does not require that either party contribute a sum certain to the funds, nor is there a requirement that contributions be made by any given date. In fact, neither he nor defendant have established such an account, thereby underscoring the fact that they did not intend to pay for their children's post-secondary education. Plaintiff also argues that in view of the fact that defendant seeks to recover $44,962 as the cost of Seminary, the Stipulation would certainly have included a provision requiring him to pay so large an expense if that was their intent. Finally, plaintiff contends that defendant's failure to consult with him prior to enrolling the children in Seminary pursuant to the terms of the Stipulation also warrants a denial of her request that he be wholly or partially responsible for the expenses.

In addressing his obligation to pay for camp, plaintiff acknowledges that he is responsible for paying up to $1,000 per year per child, or $3,000 per year. In arguing that he has fulfilled this obligation, plaintiff annexes a receipt for the payment of $3,000 for camp in 2011. He then asserts that since defendant's spreadsheet indicates that the cost was only $1,200, he overpaid by $1,800, which amount should be sufficient to pay for camp in 2012. He further asserts that he did not pay for camp in 2013 because defendant told him that the children intended to secure employment as camp counselors. Plaintiff again notes that defendant fails to attach any documentation substantiating these expenses to her spreadsheets and/or to her moving papers.

Finally, plaintiff argues that although defendant portrays him as a well-to-do man who can afford to pay his children's expenses, such is not the case. In support of this assertion, plaintiff annexes a copy of his 2012 tax return, which indicates that he earned gross income in the amount of $$$$$$$; his current gross income is approximately $$$$$$$ in 2013. On this salary, he is obligated to pay $$$$$ in maintenance, $$$$$ in basic child support and approximately $$$$$ per month in child support add-ons. Accordingly, he is unable to afford to pay the expenses sought by defendant. Plaintiff also claims that he has already borrowed $$$$$$$$$ so that he could pay the expenses imposed upon him by the Agreement.

Defendant's Reply

In reply, defendant asserts that plaintiff does not deny that he is obligated to pay for all educational expenses for the children; she asserts that he is therefore obligated to pay for the cost of books, testing, college preparation and activities associated with the children's schools. Defendant goes on to argue that she submitted a detailed accounting to plaintiff for each cost incurred; a description of the items on which the money was spent; and when the expense was paid by check, she lists the check number. In a supplemental affidavit, defendant attaches hundreds of pages of copies of checks, receipts, credit card statements and other miscellaneous documents that she argues evidence the amount and purpose of each claimed expenditure. In addressing her purchase of the computers, defendant argues that it is necessary for each child to have a computer; she believes that the cost for the three MAC computers that she bought is reasonable. Defendant also notes that activities that the children participated in, such as basketball and soccer, are offered at school for an additional cost. [*5]Defendant denies that she alienated the children from plaintiff and instead claims that it was plaintiff who chose to antagonize the children and refused to pay for their expenses.

Defendant goes on to assert that it was always intended that the children would attend college. Thus, even if the court decides that Seminary is not an extension of high school, but is instead viewed as attendance at college, plaintiff is required to pay 50% of the cost. Defendant further argues that the children will earn up to 36 college credits for attending Seminary. She asserts that since plaintiff could afford to pay for high school, the court should find that he can similarly afford to pay for college. Defendant also explains that the money that she seeks to recover does not include food and housing, which she pays for utilizing credit cards. Finally, defendant alleges that although plaintiff's tax returns indicate that he earns $$$$$$$ per year, plaintiff's lifestyle clearly indicates that he earns more. To support this claim, defendant notes that plaintiff recently tore down a house for which he paid over $$$$$$$, and began to construct a new home at an additional cost of $$$$$$$$. Thus, plaintiff's claim that he is in deep debt is a result of his own actions.

Discussion

The court will first address defendant's contention that plaintiff is responsible for paying for the year that each of the children spent at Seminary; the controlling provisions of the Agreement are quoted above. In determining the responsibility of each party, the court is guided by the general principle that "[a] matrimonial settlement is a contract subject to principles of contract interpretation . . . [and] a court should interpret the contract in accordance with its plain and ordinary meaning" (Awerman v Awerman, 36 AD3d 842, 843, 830 NYS2d 223 [2d Dept 2007], citing Edwards v Poulmentis, 307 AD2d 1051, 1052, 763 NYS2d 677 [2d Dept 2003]; accord Rauso v Rauso, 73 AD3d 888, 889, 802 NYS2d 573 [2d Dept 2010]; Lobacz v Lobacz, 72 AD3d 653, 654, 897 NYS2d 516 [2d Dept 2010]). Applying this general principle to the parties' Agreement, it is clear that plaintiff is obligated to pay all education costs and fees for the children through yeshiva or secondary school. The Agreement does not, however, obligate plaintiff to pay for Seminary or college (see generally Cimons v Cimons, 53 AD3d 125, 133, 861 NYS2d 88 [2d Dept 2008] [college tuition is beyond the realm of what is normally considered child support]; accord Lee v Lee, 18 AD3d 508, 512, 797 NYS2d 283 [2d Dept 2005]). The parties, who were represented by counsel, did not include the concept of "Seminary" in their Agreement and the Court cannot add a term, nor can it rewrite the Agreement (see e.g. Matter of Korosh, 99 AD3d 909, 911, 953 NYS2d 72 [2nd Dept 2012] [a court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning]).

Similarly, the provision that states that the parties intend to establish college funds for the children cannot be relied to obligate either party to pay for college, since the provision does not require either party to establish such an account, it does not provide for the amount to be contributed, no dates for contribution are established and the Agreement does not allocate the cost of college between the parties. In reaching this conclusion, the court also [*6]notes that defendant does not refute plaintiff's assertion that neither one of them has established and/or contributed to such accounts.

In reviewing the expenses for which plaintiff seeks reimburse, the court will first address the laptops that defendant purchased at the cost of $4,344 ($1,199 per laptop + $249 for protection per child), since this single expense comprises a large portion of the $19,311 that she seeks to recover. While the court agrees that a computer may well be a necessity for a high school student, its will not be characterized as an educational expense or fee, particularly when defendant receives $$$$$$ per month in basic child support to meet the children's expenses. In so holding, the court also notes that defendant offers no explanation with regard to why she believed that it was necessary to purchase such expensive computers. Finally, defendant fails to provide the actual bills for the payments that she made for the computers.

With regard to the other expenses that defendant claims to have incurred, although she attaches hundreds of pages of copies of checks, credit card bills and other miscellaneous statements as exhibits, no actual bills or demands for payment for the children's expenses are annexed. Similarly, none of the documents produced reference the child for whom the purchase was made and some do not even identify what was purchased or what expense was being satisfied.[FN1] Thus, defendant fails to provide any evidence to substantiate her claim that the expenses for which she seeks reimbursement were necessary school expenses or fees. Moreover, the voluminous documents submitted by defendant are not arranged in a manner that corresponds to the amounts of money that she is seeking to recoup and she makes no attempt made to explain how she determined the amount of money that she seeks to recover for each year.

In addition, a review of the exhibits reveals that many of the claimed expenses pertain college admission, preparatory courses and materials. As found above, however, plaintiff is not obligated to pay for college for the children. From this it follows that under the terms of the parties' Agreement, he is not obligated to pay for any of the costs defendant incurred to prepare the children for college (see generally A.C. v J.O., 40 Misc 3d 1226(A), 1226A [New York Sup Ct 2013) [college application fees, fees for the SAT and other pre-college standardized tests and preparation costs for those tests are considered college expenses]). Further, the provision of the Agreement that refers to the creation of college funds for the children refers to " college tuition, fees, expenses, applications, preparatory courses and materials." The inclusion of these expenses in this provision compels the conclusion that said expenses were not included in plaintiff's other child support obligations.

The court also notes that while defendant refers to a provision of the Agreement that obligates plaintiff to pay up to $3,000 per each for camp, she does not address the full [*7]sentence, which provides that plaintiff is obligated to pay:

"All expenses for camp and extracurricular expenses not to exceed $1,000 per child per year."

(Agreement, Article [III][B][3], p 15 [emphasis added]). Thus, this provision makes it clear that the expenses for extracurricular activities and camp that plaintiff is obligated to pay were to be separately considered, and were not intended to be included in the previous paragraph that obligates him to pay all education expenses. In this regard, the court again notes that defendant's checks, receipts and statements make no attempt to differentiate between necessary educational costs and costs attributable to extracurricular activities.

Accordingly, since the court is unable to ascertain the amount of money that defendant is entitled to receive for educational costs, camp and extracurricular activities, her application for reimbursement is denied, without prejudice. It is the obligation of the movant to clearly put forth her proof, not to just annex random copies of checks, receipts, statements, etc., leaving it to others to "figure it out." In this regard, it must be stressed that judicial resources should not be utilized to address a blunderbuss motion, premised upon documents which are so voluminous and unorganized that they are insufficient to even warrant an evidentiary hearing.

Attorneys' Fees

Defendant's Contentions

Defendant contends that she is entitled to recover attorney's fees as a result of having to make this motion pursuant to Article XVIII of the Agreement or pursuant to Domestic Relations Law § 238. She accordingly requests fees in the amount of $10,000.

Discussion

In addressing this issue, it is first noted that "[w]here a stipulation of settlement provides the basis for an award of an attorney's fee, the terms of the agreement control" (Aratv Arato, 15 AD3d 511, 512, 790 NYS2d 203 [2005], citing Millard v Millard, 246 AD2d 349, 667 NYS2d 714 [1998]; accord Leiderman v Leiderman, 50 AD3d 644, 857 NYS2d 162 [2008] [where an unambiguous stipulation of settlement provided that if either party defaulted with respect to any obligation set forth therein, the nondefaulting party, if successful in enforcing the terms of the stipulation by either judgment or settlement, would be paid a reasonable attorneys' fee and related expenses and costs incurred in the enforcement, the terms of that provision would control]; Matter of Berns v Halberstam, 46 AD3d 808, 809, 848 NYS2d 323 [2007] [where the parties have agreed to provisions in a settlement agreement which govern the award of attorneys' fees, the agreement's provisions, rather than statutory provisions, control]; Riemer v Riemer, 31 AD2d 482, 299 NYS2d 318 [1982], affd 31 NY2d 881, 340 NYS2d 185 [1972] [a valid and subsisting separation agreement is a bar to an application for counsel fees]). Thus, defendant's reliance upon DRL § 238 in seeking an award of counsel fees is misplaced.

Herein, the parties' Agreement provides for the payment of attorneys' fees in an [*8]enforcement proceeding "provided such suit or other proceeding results in a judgment, decree or order in favor of the non-faulting" party (Agreement, Article XVIII[a], p 35). Inasmuch as defendant's motion has been denied in its entirety, she in not entitled to an award of attorneys' fees.

Conclusion

All relief requested by defendant is denied.

The foregoing constitutes the order and decision of this court.

E N T E R:

JEFFREY S. SUNSHINE

J. S. C.

Footnotes

Footnote 1:As an example, defendant includes copies of many checks made payable to the children's schools. She does not, however, attach the bill that is being paid, nor does she reference the checks to any particular child or expense.