| Wetherby v Wetherby |
| 2008 NY Slip Op 02936 [50 AD3d 1226] |
| April 3, 2008 |
| Appellate Division, Third Department |
| Anthony E. Wetherby, Appellant, v Theresa L. Wetherby,Respondent. |
—[*1] Law Office of Jennifer Jensen, Glens Falls (Jennifer A. Jensen of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (Breen, J.), entered February 9, 2007in Warren County, which, among other things, denied plaintiff's motion to vacate a priordomestic relations order.
In January 2004, plaintiff and defendant, parents of three children of the marriage, enteredinto an opt-out agreement which was incorporated, but not merged, into a subsequent judgmentof divorce. As relevant here, the opt-out agreement provided that the parties would share jointlegal custody of their minor child, with defendant having primary physical custody and plaintiffreceiving liberal parenting time, directed plaintiff to pay all of the minor child's uninsured healthexpenses and awarded defendant 50% of the marital portion of plaintiff's retirement plan.Thereafter, the parties entered into a mediation agreement modifying the terms of the opt-outagreement whereby they agreed, among other things, that defendant could relocate to Arizonawith the minor child in exchange for her waiver of her right to 50% of the marital portion ofplaintiff's retirement plan.
Following the issuance of a domestic relations order (hereinafter DRO), which directed thepayment to defendant of her share of plaintiff's retirement benefits pursuant to the terms of theopt-out agreement, plaintiff moved to enforce the mediation agreement and to set aside the DRO.Defendant filed a cross-motion seeking, among other things, an order declaring the [*2]mediation agreement void and directing plaintiff to reimburse herfor $1,736 in uninsured health care expenses incurred for the benefit of the minor child. SupremeCourt denied plaintiff's motion and partially granted defendant's cross motion, declaring themediation agreement invalid and unenforceable because it was not duly acknowledged, anddirecting plaintiff to reimburse defendant for the unpaid health care expenses. Plaintiff thereaftermoved to renew and reargue his motion, which was denied by the court. Plaintiff nowappeals.[FN1]
Plaintiff's contention that Supreme Court erred in finding the mediation agreement to beinvalid inasmuch as defendant waived her rights to his retirement benefits by executing thisagreement is unavailing. The opt-out agreement, having been entered into during the marriage,was subject to the strict standards set forth in Domestic Relations Law § 236 (B) (3),namely, that an agreement made by the parties either before or during the marriage shall be validand enforceable "if such agreement is in writing, subscribed by the parties, and acknowledged orproven in the manner required to entitle a deed to be recorded." Such opt-out agreementexplicitly states that "[n]either this Agreement, nor any provision hereof, shall be amended ormodified, or deemed amended or modified, except by an Agreement in writing duly subscribedand acknowledged with the same formality as this Agreement" (emphasis added). Thus,the strict formality requirements of Domestic Relations Law § 236 (B) (3) were equallyapplicable to any subsequent amendments or modifications to the opt-out agreement, such as themediation agreement at issue.
The mediation agreement, while signed and notarized, lacks a formal acknowledgment by theparties. As noted by the Court of Appeals, "the unambiguous statutory language of [DomesticRelations Law §] 236 (B) (3), its history and related statutory provisions establish that theLegislature did not mean for the formality of acknowledgment to be expendable" (Matisoff vDobi, 90 NY2d 127, 135 [1997]). Rather, this statutory provision "clearly prescrib[es]acknowledgment as a condition, with no exception" (id. at 136).[FN2] As such, Supreme Court properly found the unacknowledged mediation agreement to be invalidand unenforceable.[FN3][*3]
Plaintiff next asserts that Supreme Court improperlyawarded defendant the cost of the child's uninsured health care expenses since defendant breachedthe terms of the opt-out agreement by deliberately taking the parties' minor child tononparticipating health care providers. Contrary to plaintiff's contention, the opt-out agreement,which provides that "[plaintiff] shall pay 100% and [defendant] shall pay 0% of the uninsuredhealth care expenses of the three children," does not oblige defendant to exclusively pursueproviders associated with plaintiff's health insurance plan. Thus, Supreme Court acted within itsdiscretion in awarding defendant reimbursement according to her demonstrated expenses.
Carpinello, Kane, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Plaintiff appeals only theoriginal order, not the denial of his motion to renew.
Footnote 2: While we recognize that anunacknowledged agreement which is not merged into a judgment of divorce may be enforceablein actions other than one for divorce (see Rainbow v Swisher, 72 NY2d 106, 109 [1988];Matter of Sbarra, 17 AD3d 975,976 [2005]; Geiser v Geiser, 115 AD2d 373, 374 [1985]), here, pursuant to the explicitcontractual provisions of the opt-out agreement, the parties could not effectuate a legallyenforceable modification thereof in the absence of a duly acknowledged document.
Footnote 3: Although plaintiff additionallyargues that the doctrines of equitable and promissory estoppel preclude defendant from denyingthe validity of the mediation agreement, plaintiff failed to preserve this issue for ourconsideration by not raising it before Supreme Court (see Prince v 209 Sand & Gravel, LLC, 37 AD3d 1024, 1026[2007]; Kitonyi v Albany County, 128 AD2d 1018, 1019 [1987]).