Nicol v Nicol

[*1] Nicol v Nicol 2018 NY Slip Op 50923(U) Decided on April 23, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 23, 2018
Supreme Court, Monroe County

Patrick A. Nicol, Plaintiff,

against

Tara M. Nicol, Defendant.



2013/5088



Susan Duke, Esq.

Attorneys for Plaintiff

Lakeville, New York

Michael Schmitt, Esq.

Attorney for Defendant

Rochester, New York
Richard A. Dollinger, J.

In matrimonial matters, sometimes small disputes are entwined in complex concepts. In this matter, there are two distinct issues that need resolution: (1) what constitutes damage to a litigant's credit if a former spouse defaults on a joint loan; and (2), can a parent with joint-custody exercise a form of "pocket veto" over choices for their children.

The husband seeks relief against his former wife for alleged violations of their separation agreement and judgment of divorce. At the time of their divorce, the husband and wife were jointly liable for a student loan that financed the wife's education. The wife agreed to repay the loan in their agreement. The husband argues that the wife let the student loan slip into default and that impacted his credit standing (and that he had to pay $50 to cover the default). The husband now asks this court to order the wife to refinance or pay-off the student loan, which, according to the wife has a $5,000 balance. However, neither the terms of the agreement nor the facts justify such relief. The separation agreement does not require the wife to refinance the debt if default occurs. It simply states that the wife will indemnify the husband for any payments that he makes against the loan. While it is undisputed that the husband paid $50 to keep the loan in place, the wife reimbursed him that cost, fulfilling any obligation that she has under the indemnification provision.

This court notes that the husband's complaint - damage to credit - is a common refrain in post-judgment applications by spouses who alleged that their former partner has defaulted or failed to pay their share of a joint loan obligation. As common as the complaint appears, the proof of any actual damage as a consequence of "the reduced credit score" seldom, if ever, materializes in the courtroom. In this case, there is no evidence that the husband's credit score has been altered and the court will not speculate on any financial consequences to the husband. Furthermore, there is no evidence of any added costs to the husband as a consequence of the apparent default in the loan by his ex-wife. He offers no evidence of any pecuniary loss in denied credit or increased borrowing costs caused by the wife's default. In other cases in New York, if an individual's credit is damaged through a "reported failure to pay debts," the solution is to mandate that the responsible individual "correct the default report." Ehrhardt v. EV Scarsdale Corp., 2012 NY Misc. LEXIS 6883 (Sup.Ct. Westchester Cty. 2012). Courts have declined to grant any awards for damage to credit or creditworthiness without proof of actual damages. Ziscand v. Eglevsky Ballet Co. of Long Is., 2011 NY Misc. LEXIS 4772 (Sup.Ct. Nassau Cty. 2011); Raiolo v B.A.C Home Loans, 29 Misc 3d 1227(A) (Civ. Ct. NYC 2010) (no claim for "damage to credit" because plaintiff failed to produce credit report that there has been any change in his rating owing to the actions of the defendant). Even if there was "damage" to the husband's credit, there is no language in the agreement that would justify requiring the wife to refinance or pay off the loan. In many disputes brought to this court, involving a home mortgage or line of credit, the agreement will provide that if a default occurs, the party facing the consequences of the default may immediately sell or reacquire the property. In those instances, the agreement specifically defines the rights of a damaged party to cure any default when it occurs. This agreement provides simply an indemnification right and does not require refinancing or paying off the loan. Because there is no actual damage alleged, and none proven, the court declines to find any violation of the agreement.

In a second request, the husband argues that while he agreed to pay 50% of the cost of health insurance for his children, the wife unilaterally changed health insurance coverages, and as a consequence, his weekly contribution to the cost of his children's health insurance more than doubled to $113 per week, a substantial cost increase to be absorbed by a husband making slightly more than $30,000 annually, according to his 2017 income tax return. The affidavits before the court establish that at one time, the children were covered through government sponsored health programs. However, at the time of the divorce, pursuant to their agreement, the wife assumed the obligation to provide coverage for the children. In December 2017, she wrote an email to the husband in which she said "as discussed," the wife was losing her health coverage. She informed the husband that she had obtained new coverage, and detailed the expense, including dental and vision, and set forth the amount of the contribution that the husband was required to make under their separation agreement. The husband's half share of the new insurance is $113 weekly, a sum that he does not dispute as his agreed share of the cost.

The husband argues that the wife, by unilaterally selecting this more expensive coverage, violated the joint custody provisions of their agreement. Joint custody, by its definition, requires that parent's make joint decisions regarding critical events in their [*2]children's lives. The selection of health insurance is one of those deicison for which joint decision making is required. As this court previously intoned, "Joint custody means joint decision-making." Conroy v Conroy, 47 Misc 3d 1214 (A) (Sup. Ct. Monroe Cty. 2015). In that instance, this court reiterated the rule of joint custody:

The spending of post-divorce family resources or incurring additional expenses for the child - not contemplated at the time of the signing of the separation agreement or the divorce - are at the heart of such joint decision-making. The concept of joint decision-making precludes either parent from unilaterally spending available income without approval of the other parent.

Id. at p. 8. In that instance, this court declined to require a joint custodial parent to pay because the wife had committed to pay daycare expenses that they had previously obtained for free, and she did not notify the husband before she made that commitment. Subsumed in the concept of joint custody, is an obligation for parents to timely communicate about choices for their children and both parents must reasonably respond to unforeseen changes, such as the change in health insurance in this case. Consequently, in that respect, joint custody " . . . is not meant to be a door stop to keep one's foot in the door of decision making and parental stature. It is meant to enable two parents to work together to make joint decisions in the best interests of their children." G.D. v. D.D., 52 Misc 3d 1220(A) p.67-68 (Sup. Ct. Westchester Cty. 2016).

In short, while joint custody recognizes joint decision making, it also does not create the equivalent of a "pocket veto"[FN1] for an indifferent parent who declines to timely respond to critical choices that need to be timely made by parents. A parent cannot pocket the available choices, let time and necessity dictate the choice by the single parent, and then object when the time has expired and decline to pay their agreed share of those expenses, claiming that they never gave their express consent. There is no evidence before this court that the husband took any remedial action after he was informed of the needed change in health insurance and the substantially increased cost. There is no evidence that he sought other coverages at lesser cost or even responded to the wife's email on this subject. In short, he failed to exercise his joint decision-making right at a time when it might have been effective in reducing the overall cost. Having waived his right to engage in a search of other coverages, he cannot reasonably complain about the wife's choice, especially when that choice guaranteed continuous coverage for their children. Finding an implied waiver in the husband's inaction is further fortified because the agreement required the wife to provide the health insurance coverage.

Joint custody, in this court's view, requires conscientious parenting. When a parent has the right to participate in decisions involving their children, there is an implied reasonableness in the timely exercise of that right. If a parent is aware of a [*3]critical decision that needs to be made within a fixed time frame and declines to object or directly communicate their opposition and/or attempt to negotiate another alternative, that parent waives their joint custody rights on the matter.

In this instance, the husband's failure to communicate with his wife over the change in health insurance constitutes a waiver of his joint custodial rights and he cannot object to the new - albeit higher - cost of health insurance. His request to reduce his contribution to the children's current health insurance or require the wife to seek other, less expensive, health insurance coverage is denied. His request for attorneys fees and costs is likewise denied.

Dated: April 23, 2018

____________________________________

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

Footnote 1:A pocket veto is a procedure by which the President can refuse to act on a bill passed by Congress, and if Congress has adjourned when the President's period of review has expired, the bill does not become law. See Pocket Veto Case, 279 U.S. 655 (1929) . The Fourth Department, Appellate Division has recognized the equivalent of a "pocket veto" in other contexts in which a party's delayed action thwarts a public policy. Traikoff v. Herrema, 30 AD2d 271, 276 (4th Dept 1968).