| Cheruvu v Cheruvu |
| 2009 NY Slip Op 02715 [61 AD3d 1171] |
| April 9, 2009 |
| Appellate Division, Third Department |
| Christina M. Cheruvu, Respondent-Appellant, v Sasi K. Cheruvu,Appellant-Respondent. |
—[*1] Babcock & Davies, P.L.L.C., Mendon (Jonathan S. Fishbein, Delmar, of counsel), forappellant-respondent.
Stein, J. Cross appeals from an order of the Supreme Court (McNamara, J.), entered April29, 2008 in Albany County, which, among other things, denied plaintiff's motion for counselfees.
In this action for divorce, the parties entered into an oral stipulation on the record in opencourt on March 28, 2007, resolving, among other things, issues of child custody, child support,maintenance and equitable distribution. As pertinent to this appeal, the stipulation provided thatthe parties would share joint legal custody of their two minor children (born in 1999 and 2000),that defendant (hereinafter the husband) would be responsible for payment of all tuition expensesfor the children's primary and secondary school education and that the husband would pay toplaintiff (hereinafter the wife) a $250,000 distributive award within 30 days of entry of ajudgment of divorce, as well as child support in the amount of $6,000 per month and durationalmaintenance in the amount of $4,000 per month commencing April 1, 2007. One month later, ata conference in Supreme Court concerning the application of the husband's attorney to berelieved as his counsel, the husband's new attorney advised the court that he intended to make anapplication to vacate the stipulation. Supreme Court orally directed that such application bemade within 60 days. However, the court advised the husband that the stipulation remained ineffect and that his compliance with its terms was required unless and [*2]until the stipulation was actually vacated by the court.[FN1]
In August 2007, the wife moved by order to show cause for the entry of a money judgmentto include the $250,000 distributive award, $2,000 for the children's tuition at Albany Academyand $23,500 in maintenance payments, all of which were unpaid, as well as any arrears thataccrued while the motion was pending. In addition, the wife sought an award of counsel fees andexpenses pursuant to Domestic Relations Law § 238. Supreme Court granted a moneyjudgment in favor of the wife "in the amount of $250,000 plus any outstanding maintenancepayments from April 1, 2007 forward," but denied the wife's request for tuition costs and counselfees. The husband appeals and the wife cross-appeals from Supreme Court's order. We affirm.
We perceive no error in Supreme Court's award to the wife of a money judgment pursuant toDomestic Relations Law §§ 244 and 244-a for all amounts owed with respect to thedistributive award and spousal maintenance. Contrary to the husband's contention, the court wasnot required to first hold a hearing as to his ability to pay. A hearing is necessary only where aparty, in opposition to a motion made pursuant to Domestic Relations Law § 244, submits"evidentiary proof sufficient to raise a question of fact" (Paul v Paul, 200 AD2d 820, 821[1994], lv dismissed 83 NY2d 953 [1994]; see Felton v Felton, 175 AD2d 794,795 [1991]). Here, the husband averred that he was unable to pay the $250,000 distributiveaward due to the miscalculation of the value of his medical practice, the marital residence andother assets, a decrease in his pay, and the amount of debt he had assumed pursuant to thestipulation. To the extent that the husband made these arguments in his earlier attempt to setaside the stipulation, we have previously considered and rejected them (59 AD3d 876, 878[2009]). Therefore, they are precluded pursuant to collateral estoppel principles (see Zinter Handling, Inc. v Britton, 46AD3d 998, 1000 [2007]; HydroInvs. v Trafalgar Power, 6 AD3d 882, 884 [2004]). Furthermore, although the husbandclaimed that he was no longer obligated to pay maintenance because the wife was cohabitingwith another man, he made no application to terminate or otherwise modify his maintenanceobligation. In any event, the husband's unsupported allegations are insufficient to raise issues ofmaterial fact warranting a hearing (see Gunsburg v Gunsburg, 173 AD2d 232, 233[1991]; see generally Lloyd v Lloyd, 226 AD2d 816, 817 [1996]).
However, we disagree with the wife's contention that she was also entitled to a moneyjudgment for amounts the husband failed to pay for the children's tuition at Albany Academy forthe 2007-2008 academic year. The parties' stipulation provided that defendant would be requiredto pay "all primary and secondary school education expenses limited to tuition for and on behalfof the parties' two children,"[FN2]and they expressly acknowledged that the children were attending Albany Academy at that time.While placing the stipulation on the record, the wife's counsel later clarified that the parties had"specifically agree[d] . . . that for the time being, it is appropriate that thechildren continue to attend the Albany Academy" (emphasis added). A month later, the husbandindicated his concern regarding his obligation to pay private school [*3]tuition for another year and claimed that the stipulation did notspecifically require the children to continue to attend Albany Academy. He also expressed hisbelief that it is in the children's best interests to attend the public schools in the school district oftheir residence. When he failed to make the tuition deposit required to reserve the children'sspots at Albany Academy for the following academic year, the wife decided to make thepayment on her own.
Where a court must interpret a disputed term of a divorce agreement, the inquiry " 'shouldnot be limited to the literal language of the agreement, but should also include a consideration ofwhatever may be reasonably implied from that literal language' " (Stewart v Stewart, 266AD2d 702, 704 [1999], quoting Hewlett v Hewlett, 243 AD2d 964, 966 [1997], lvsdismissed 91 NY2d 887 [1998], 95 NY2d 778 [2000]). Here, the parties failed to include inthe stipulation any indication that they anticipated that the children would continue to attendAlbany Academy—or any other private school—in future school years.Significantly, they clearly envisioned that, as part of their joint legal custody arrangement,decisions regarding the children's education would be made by agreement of both parties. Thus,Supreme Court's finding that "neither party was obligating himself or herself to paying the costsof attending any particular primary or secondary school including Albany Academy" was areasonable inference based upon the stipulation as a whole. Moreover, inasmuch as the husbandmade the wife aware of his opposition to the children's continued attendance at that school, wecannot conclude that the responsibility for taking the initiative to attempt to reach anagreement—or, in the absence of an agreement, to seek a court determination as to wherethe children should attend school—fell on the husband any more than on the wife.
Finally, we are unable to determine whether Supreme Court abused its discretion in denyingthe wife's request for counsel fees pursuant to Domestic Relations Law § 238. UnlikeDomestic Relations Law § 237 (c)—upon which plaintiff now relies in support ofher argument—Domestic Relations Law § 238 does not require the court to awardcounsel fees, even where there has been a willful violation of a court order. Instead, the questionof whether to grant an application for counsel fees made pursuant to Domestic Relations Law§ 238 is left to the court's sound discretion (see Domestic Relations Law §238; Webber v Webber, 30 AD3d723, 725 [2006]; Canick v Canick, 122 AD2d 767, 769 [1986]; Scheinkman,Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law§ 238). Inasmuch as Supreme Court's decision fails to set forth any basis for its denial ofthe wife's application, and the record is insufficient to enable us to discern the basis therefor, weremit the issue of counsel fees to that court to articulate its reasons for such denial or, in thealternative, to reconsider its determination (see generally Dunne v Dunne, 172 AD2d482, 484 [1991]; Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14,Domestic Relations Law § 238).
The parties' remaining contentions have been considered and found to be without merit.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as denied plaintiff's motion for counsel fees;matter remitted to the Supreme Court for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1: The husband's new attorney didthereafter move to set aside the stipulation but the motion was denied by Supreme Court and weaffirmed that determination on appeal (59 AD3d 876 [2009]).
Footnote 2: Pursuant to the stipulation, thewife was obligated for all other educational expenses.