M.D.B. v C.P.B.

[*1] M.D.B. v C.P.B. 2017 NY Slip Op 51332(U) Decided on October 5, 2017 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2017
Supreme Court, Monroe County

M.D.B., Plaintiff,

against

C.P.B., Defendant.



13/777



Maureen Pineau, Esq.

Attorney for Plaintiff

New York, New York

Joan Adams, Esq.

J. Adams & Associates PLLC

Attorney for Defendant

Buffalo, New York
Richard A. Dollinger, J.

The letter "m" can be game changer. It can transform the word" any" into the word "many." The one-letter difference between "any" and "many" can also represent a challenge to a court trying to determine the intentions behind the use of the word "any" in a separation agreement and whether it obligates a spouse, in the future, to sign a single version of an important assignment or "many" of those documents.

At issue in this instance is a provision in a separation agreement in which a husband agreed "to sign any assignment as may be necessary" to allow the wife's monetary support to be paid directly to her. The phrase, "sign any assignment as may be necessary," is contained in both the child support section, and the maintenance section of the agreement. The judgment of divorce contains nearly identical language, as it states the husband "shall sign any and all written documents/assignments" as will be necessary to allow the wife to receive payments directly from the husband's brother.[FN1] The husband was the beneficiary of a quarterly payment from his brother [*2]related to the husband's sale of his business interest to his brother, which occurred contemporaneously with the divorce action in this matter. The husband and wife agreed that the wife would receive her quarterly monetary support from the husband directly from the husband's brother (who owed her former husband a substantial sum). There is no dispute that the former husband agreed to assign a portion of these payments directly to his former wife. The wife's attorney, working with counsel for the brother (who owed the husband substantial sums), negotiated an "Assignment and Acceptance Agreement" ("assignment"). This assignment agreement was designed to direct the required portion of the quarterly payment directly to the wife from 2016 through April 2021. The assignment also recites a series of facts that relate to the rationale for the assignment. The assignment specifies that the former husband had a federal tax lien for a substantial sum filed against him, shortly before the separation agreement was signed. The wife's attorney, using the template of the assignment approved by corporate counsel, drafted two assignments: one for the wife's child support, and the other to cover the wife's agreed maintenance payments.

The wife's attorney, after drafting the assignments, forwarded them to the husband's attorney, who, according to the wife's attorney's affidavit, said that the husband would not sign any assignment covering any future payments. The husband's refusal was based on the claim that the agreements did not require him to sign any specific assignment and he could require, consistent with the agreement, that the wife present him with an assignment on or about the time that he received his quarterly payment from his brother. The effect of the husband's refusal was the wife would have to draft a separate assignment every three months for a period of more than five years, present it to the husband, and await his signature. Under the wife's proposed assignment, a single signature on the proposed assignment would cover the entire five years, and obviate the need for any future signatures.

After the husband declined to sign the all-encompassing assignment, the wife filed an order to show cause, seeking a court order to require the husband to sign the submitted assignment.[FN2] In his response, the husband argued that the single assignment was overly broad because the child support could be suspended if the children were emancipated and the maintenance would be suspended if the wife remarried. The husband claimed that to protect him from any overpayment of these obligations, he was only required to sign assignments as his payments became due.[FN3] This court held that that language - the repeated use of the phrase "any [*3]assignment" - was ambiguous and required a hearing to determine the parties' intentions.

Initially, the husband's attorney objected when the wife's attorney called her prior divorce counsel to testify about the drafting of the separation agreement. The husband's counsel argued that the attorney's testimony was irrelevant because the intention of the parties governed the interpretation of the separation agreement, adding "it is a contest between two ordinary people who are supposed to know what they are signing." The wife's attorney responded that the agreement was drafted by her prior counsel, but the agreement contained a standard clause that both the husband and wife had had input into "the language of the agreement." Both the husband and wife initialed each page of the agreement. The agreement also contained a provision that the agreement was the result of negotiation between two experienced matrimonial attorneys and hence, any ambiguity should not be interpreted against the wife, even though her counsel was the principal draftsman of the agreement. The court permitted the wife's prior attorney/draftsman to testify regarding the rationale behind the use of the phrase "any assignment" in the agreement.

In his testimony, the wife's attorney described the assignment as a "fundamental principle of our settling the matter because of the tax liens - or potential tax liens and IRS problems and non payment of taxes" by the husband. The assignment would, according to the attorney, preserve the wife's "rights to equitable distribution and support." The attorney testified:

At that point, the lump sum payment to my client, in an effort to achieve settlement, was going to be reduced and at that point I reasserted the fact that if we're going to reduce the lump sum payment, which had that we needed them to again have an assignment covering the entire amount of money due my client by way of maintenance and ultimately child support both that we needed assignments that covered the entire lump sum amounts for those periods of time in order that we have the possibility of having in place assignments that would pre-date [sic] potential IRS liens that now were out there.

The attorney testified that after the parties reached a conceptual agreement in negotiations with the court, after two days of trial, the attorneys and their clients adjourned to the wife's attorney's office, where the four people - the clients and their respective counsel - worked on the language of the agreement. The wife's attorney said that he drafted the language on the assignments, had the husband's attorney review them and, when presented the language on the assignments, the husband's attorney had no objection. When the attorney was asked whether he had discussed the number of future assignments with his client and whether it was intended that there be one assignment or a series of assignments, the wife's attorney said no. When asked why he had used the phrase "any assignment," the wife's attorney testified that when he struck the agreement with the husband's attorney he knew that he would also have to negotiate the terms of the assignment with the husband's brother, who owed the husband significant sums of money. He testified that he had negotiated a prior assignment with the brother's corporate attorney who had carefully crafted a court ordered assignment. The wife's former attorney also testified that, in the negotiations with the husband's attorney, on the day of the preparation and signing of the separation agreement, there was no discussion about "successive maintenance assignments."

The attorney did testify to the creation of an interim order in the matter, which occurred when the wife used an assignment to direct a payment from the husband's brother directly to her [*4]while the action was pending. The former attorney testified that:

Because that order dealt with the fact that [the brother's] lawyers were sitting in the court room after [the husband's attorney] and [the husband] consented to the assignment and they wanted to make certain that even though the assignment called for a monthly payment of approximately $38,000 and change - the exact number I don't recall that — if there was not a sufficient money at that point payable to [the husband] is that they would not have to make the payment of $38,000 and change to my client.

During cross-examination, the wife's former attorney acknowledged that on prior occasions, he had drafted and presented for signature assignments that only related to particular quarterly payments and he admitted that the husband had signed those assignments and returned them. Only after the settlement of the divorce action, when he presented an assignment for the entire payments owed, and not just the quarterly payments, did the husband refuse to sign the assignment. He added that he had drafted the interim quarterly assignments, not as an admission that they were what the agreement called for, but instead purely as a convenience to get the funds paid before he could bring the entire matter to this court.

The only other witness was the wife. She testified that she did not anticipate, under the agreement, that successive assignments would be drafted and she only anticipated one "global assignment for child support and one global assignment for maintenance." She further testified that she had consulted with a tax attorney who told her that she needed to have one assignment in place and served upon the husband's brother before any tax liens were filed against her husband. Otherwise she risked not being able to recover the promised payments for child support and maintenance.

The husband, who was obligated to sign the assignments, did not attend the hearing and the husband's counsel called no witnesses. Husband's counsel constantly objected to the prior attorney's testimony and the court overruled dozens of objections. The court also denied a request for recusal when husband's counsel objected that the court - which had overseen a two-day trial on the matter before its settlement and had actively participated in settlement negotiations - was relying on its recollection of court orders and prior court proceedings in ruling on various objections. The court also denied a post-hearing motion to dismiss the wife's application. Husband's counsel argued that the interpretation of the phrase "any assignment" could not be explained by the wife's trial counsel and that only the husband or wife could testify to its meaning. The court, relying on the attorney's testimony and the wife's testimony that she had anticipated a single assignment, denied the husband's motion to dismiss.

In deciding a hearing was required, the court concluded that the phrase "any assignment" was ambiguous because its meaning was susceptible to more than one reasonable interpretation. Evans v Famous Music Corp., 1 NY3d 452, 454 (2004). Because an ambiguity existed, the court considered parol evidence - evidence outside the four corners of the document - to assist in the interpretation of the agreement. Schron v Troutman Sanders LLP, 20 NY3d 430, 433 (2013). In considering parole evidence, this court recognizes that its role is interpretative, not selective. This agreement was negotiated between sophisticated, counseled business people. The husband was a joint owner of a multi-million-dollar business, who had just negotiated sale of his interest in that business to his brother. While the wife did not have a recent business background, her interests in this matter were well-guarded and advanced by her experienced matrimonial counsel. [*5]Because the separation agreement in this instance was negotiated by informed parties negotiating at arm's length, this court is reluctant to interpret the agreement as impliedly stating something which the parties neglected to specifically include. This court may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing. Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 (2004); Argo Partners II LLC v Learning Box LLC, 2015 NY Misc. LEXIS 654, 2015 NY Slip Op 30308 [U] [Sup Ct, NY County 2015].)

Applying these rules to this matter, the words "any assignment" were drafted by the wife's attorney and reviewed and approved by the husband's attorney. There is no evidence that the husband and wife failed to read the agreement before they signed it. As evidence that they had read the agreement, the husband and wife initialed each page, including the pages which referenced the assignment. The only logical conclusion is that both parties agreed to the use of the phrase "any assignment" to describe the documents that would be produced for the husband's signature under the terms of the agreement. The word "any" implies that a document, containing the assignment, if presented to the husband for signature, would be signed by him. The word "any" has two distinctive meanings. The first is: "used to refer to one or some of a thing or number of things, no matter how much or many; one or some indiscriminately of whatever kind or many." The second is: "whichever of a specified class might be chosen." Wikipedia Dictionary, 2017. The word implies that while there may be a series of available options, one - the "any" - may be selected or chosen for a particular purpose.

In this court's view, the word "any" as an adjective of the word "assignment" means that the wife could choose to have the husband sign "any" assignment that achieved the object specified in the sentence under consideration. The agreement infers that an assignment would be presented to the husband. There is no indication that the husband would prepare the assignment or, for that matter, have the right to approve its contents. In fact, when assignments were needed during the pendency of their action it is undisputed that the wife's counsel prepared and offered the assignments for the husband's signature. The language in the operative sentences does not restrict the wife's choice of which assignment to present to the husband - he was obligated to sign "any" assignment presented, provided it met the objective set forth in the sentence to protect her right to future child support or maintenance payments.

This interpretation of the word "any" comports with the remaining language of the agreement and the testimony of the attorney who negotiated the agreement and drafted the terms. Nothing in the agreement gives the husband the right to decline to sign an assignment that achieves the goal of preserving the wife's right to child support and maintenance. There is no language that makes his signature conditioned on his approval of the assignment. There is no language that suggests he would only sign an assignment that covered the three-month period between the quarterly payments from his brother. There is no evidence that he sought, during negotiations, any right to decline to sign "any" assignment presented to him. In contrast, the wife's attorney gives a valid justification for the wife's presenting an assignment that would protect the wife's interest in receipt of the payments throughout the period in which they were required to be paid. The single assignment - the "any" selected by the wife and her counsel - provided the best method to protect her payments for child support and maintenance.

According to the attorney, with the proffered assignment in place, the wife would be [*6]insulated from claims by taxing authorities and the government could not intercept her support payments through tax liens at any time after the assignment was signed and served. This justification amply supports the wife's choice of the single assignment to best protect the financial security that she had negotiated in the separation agreement. This court declines to use the prior assignments, signed by the husband for three-month periods, as decisive in interpreting this portion of the agreement. It is undisputed that the wife's counsel presented short-term assignments to the husband - which he signed - prior to seeking this court order to require a signature on a permanent assignment. The attorney testified - without contradiction - that this interim step was taken to secure the payments while the attorneys haggled over whether a single assignment would be executed. Furthermore, even if this post-negotiation conduct were a factor, this court notes that the wife did not waive her right to request a signature on a single, long-term assignment. She negotiated for the right to have the husband sign "any" assignment and she could, at "any" time, seek his signature on "any" assignment that protected her interest. She could substitute the permanent assignment for "any" prior version at "any" time and the husband is, by the express terms of the agreement, required to sign it.

The wife's request for an order requiring the husband to sign the proffered assignment is granted. Any request for further relief was resolved by the court at special term. In an exercise of discretion, the court declines to award attorneys fees to the wife. The ambiguity in the use of the word "any" is, in the court's view, chargeable to both parties when their agents, the attorneys, drafted this portion of the agreement. They ratified any ambiguity by signing the agreement. With an apparent equivalence in fault for the ambiguity, the court declines to award fees to either party. The wife is awarded the costs and filing fees for the motion.

SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48

Dated: October 5, 2017

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:The language in the two sections of the judgment are slightly different. In the child support provision, the agreement states that the husband "shall sign any and all written documents/assignments as may be necessary to allow the payment of monetary child support." The maintenance provision states that husband "shall sign any and all assignments as may be necessary" to authorize the payments directly to the wife. These slight differences in the operative language do not change the issue in this matter which centers on the use of the phrase "any and all," which appears in both provisions of the judgment.

Footnote 2:The order to show cause sought additional relief, but those collateral matters were resolved by orders or negotiated resolutions prior to the hearing.

Footnote 3:The husband also argues that a single assignment binds him to make payments of child support and maintenance that may be altered in the future, if a child is emancipated prior to 21 or the wife remarries. However, the assignment expressly provides that if the husband obtains a modification order from any competent court, the amount of payments required under the assignments would be subsequently modified.