| Matter of Lerman v Haines |
| 2011 NY Slip Op 04567 [85 AD3d 1248] |
| June 2, 2011 |
| Appellate Division, Third Department |
| In the Matter of Alan Lerman, Appellant, v Caren Haines,Respondent. |
—[*1]
Garry, J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered October 28, 2009, which granted respondent's application, in a proceeding pursuant toFamily Ct Act article 4, to, among other things, direct petitioner to pay child support.
The parties were divorced in 2002 pursuant to a judgment of divorce that incorporated theiroral stipulation as to custody and visitation of their two children. As pertinent here, in aproceeding originally commenced by petitioner (hereinafter the father), respondent (hereinafterthe mother) cross-petitioned for reimbursement of certain medical expenses incurred on behalf ofone of the children.[FN1]Following a hearing on the cross petition, a Support Magistrate found, among other things, thatthe father had willfully failed to comply with his child support obligations by failing to pay hisportion of the disputed expenses and entered a money judgment against the father in the amountof $2,870.35. Family Court denied the father's objections and upheld the Support Magistrate'sfactual findings and order. The father appeals.
The judgment of divorce sets out detailed child support provisions that, among other [*2]things, direct the father to maintain health insurance on thechildren's behalf, and provide that specified medically-related expenses not covered by healthinsurance shall be paid 85% by the father and 15% by the mother. The father contends thatcertain provisions in the custody stipulation relieve him of the obligation to pay. Specifically, herelies upon provisions that direct the parties to make all major decisions regarding the childrenupon consultation and consent, provide that if either party makes a unilateral decision, anyattendant costs are to be borne solely by that party, and direct the parties to notify each other ofmatters concerning the children's health. The father contends that he need not contribute topayment of the disputed expenses based upon these provisions, because the mother failed toprovide him with adequate advance notice of the child's appointments with the medicalproviders.
"An oral stipulation of settlement that is incorporated into a divorce judgment 'is anindependent contract, subject to the principles of contract interpretation' " (LaPierre vLaPierre, 84 AD3d 1497, 1498 [2011], quoting Ross v Ross, 16 AD3d 713, 714 [2005]). "In ascertaining the intentof the parties, the entire document is examined and if its language is clear and unambiguous, thecourt's inquiry is ended" (Stevens vStevens, 11 AD3d 791, 792 [2004] [citation omitted]). We find no ambiguity in thestipulation and conclude that its plain language completely fails to support the father's contentionthat it was intended to apply to his obligation to pay the disputed expenses.
The parties' stipulation resulted from a settlement reached on the morning of a trial that hadbeen scheduled specifically to address the limited issues of custody and visitation. Consistentwith that limitation, the stipulation pertains exclusively to such subjects, including the children'sprimary residence and the parties' vacation and visitation schedules. Neither payment of medicalexpenses nor any other matter pertaining to child support is discussed or referenced anywhere inthe stipulation. Approximately two months later, the parties placed a separate agreement upon therecord in open court relative to child support and certain other matters, and these terms weresubsequently recited in the judgment of divorce.
"[W]e cannot read into the parties' stipulation language not contained therein" (id.).Nothing in the plain language of the stipulation indicates that the parties intended any of itsprovisions to affect, alter, or apply to their obligation to share the cost of the children'sreasonable and necessary medical expenses. This conclusion is further supported, viewing therecord as a whole. The provision in the judgment incorporating the stipulation describes it as"[t]he stipulation with reference to custody" without mentioning medical expenses or otherwiserelating the stipulation to the judgment's separate child support provisions. The support provisionat issue does not mention the custody stipulation and provides in unambiguous terms that "all"listed expenses "shall be paid" in the specified proportions. To find the obligation to pay theseexpenses contingent upon other conditions would contradict the provision's plain language andimproperly deprive the words "all" and "shall" of meaning (see 73 NY Jur 2d, Judgments§ 21). Instead, we find nothing in either the stipulation or the judgment indicating anyintent to make the parties' obligation to pay the disputed expenses contingent upon theircompliance with the stipulation.
Further, even assuming that the custody stipulation could be read to apply to this supportobligation, its language does not support the father's claim. In three related paragraphs pertainingto joint decision-making, the stipulation requires "major decisions" to be made upon "mutualconsent" and lays out the consequences for failure to obtain such consent—i.e., [*3]disagreements as to medical decisions are to be resolved by aspecified physician,[FN2]and any party who makes a unilateral decision is to be solely responsible for any attendant costs.The father relies upon the next paragraph, which requires the parties to notify one another "asmuch in advance as possible" of matters involving the children's health, education or welfaresuch as "scholastic and extra-curricular events and activities." However, this provision explicitlystates that the purpose of the notification requirement is not to obtain consent, but "so that bothparties can attend such events or activities if he or she chooses." The provision does not use thewords "consent" or "decision," nor does it otherwise refer to the previous paragraphs on jointdecision-making. No language reveals an intent to relate those provisions to the noticerequirement. The mere fact that they appear in sequence is insufficient to support the claim thatthe parties intended a failure to notify one another of the children's appointments to result in thesame consequence as failure to obtain one another's consent before making "major decisions."Accordingly, Family Court properly determined that the father was obligated to pay the disputedexpenses.
Next, the father contends that his failure to pay the subject medical costs was not willfulbecause it was based on his reasonable interpretation of the order. Proof of noncompliance with asupport order over a period of time is prima facie evidence of a willful violation, shifting theburden to the payor spouse to demonstrate inability to pay (see Matter of Williams v Johnson, 56 AD3d 1021, 1022 [2008]; Matter of Heyn v Burr, 19 AD3d896, 897-898 [2005]). Here, the father—a busy gastroenterologist whose annualincome at the time of the parties' divorce was nearly $300,000—made no claim that hecould not afford to pay the disputed expenses (see Matter of Walsh v Karamitis, 291AD2d 749, 750-751 [2002]). Moreover, the Support Magistrate found that the father had ahistory of being obstinate and unreasonable in withholding consent for the child's medical careand failing to pay for it. According deference to these credibility assessments with regard to thefather's good faith understanding of his obligations and the willfulness of his failure to pay thedisputed expenses, we find no reason to disturb this determination (see Matter of Moran v Cavanaugh, 39AD3d 954, 955-956 [2007]; Matter of Heyn v Burr, 19 AD3d at 898).
Finally, the record does not support the father's contention that the Support Magistrate wasbiased against him. The Support Magistrate's efforts to avoid repetitive proof and expedite theproceeding were directed at both parties, consistent with his obligation to "keep the respectiveparties focused upon a succinct presentation of evidence relevant to the issues to be decided [andto] . . . insure an orderly and expeditious trial" (Matter of Bush v Bush, 74 AD3d 1448, 1449 [2010], lvdenied 15 NY3d 711 [2010] [internal quotation marks and citations omitted]). The fact thatthe Support Magistrate made findings unfavorable to the father is not an indication of bias(see Anonymous v Anonymous, 287 AD2d 306, 306 [2001], lv denied 97 NY2d611 [2002]).[*4]
Spain, J.P., Lahtinen, Kavanagh and McCarthy, JJ.,concur. Ordered that the order is affirmed, with costs.
Footnote 1: The father sought unsuccessfullyto terminate his child support obligations. The two matters were handled separately, and only thedetermination of the mother's cross petition is at issue here.
Footnote 2: The parties followed thisprocedure with regard to certain treatment the child required; the father objected to the mother'sselection of a provider with whom the child had already begun treatment, and the mother referredthe dispute to the designated physician, who determined that the child's treatment shouldcontinue. The father argues that the mother failed to notify him of the child's appointments withthis provider.