| Rader v Rader |
| 2008 NY Slip Op 07105 [54 AD3d 919] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Michael E. Rader, Appellant, v Barbara G. Rader,Respondent. |
—[*1] Lee A. Rubenstein, New York, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment entered September18, 1998, the plaintiff appeals from an order of the Supreme Court, Rockland County (Sherwood,J.), entered September 20, 2007, which denied his motion for the reimbursement of allegedoverpayments of spousal maintenance he paid pursuant to an order of the same court datedNovember 30, 2006.
Ordered that the order entered September 20, 2007 is affirmed, with costs.
In January 2006 the plaintiff stopped paying the defendant maintenance, contending that theparties' judgment of divorce entered September 18, 1998 required him to pay maintenance onlyfor a period of 10 years, retroactive to the commencement of the divorce action in January 1996.The defendant claimed that she was entitled to maintenance until July 2007—10 yearsafter the date of the decision awarding her maintenance. She thus moved for leave to enter amoney judgment for maintenance allegedly accruing after the plaintiff ceased payingmaintenance in January 2006.
In an order dated July 7, 2006 the Supreme Court granted the defendant's motion, directedthe plaintiff to pay the defendant maintenance for a period of 10 years, retroactive to July 1997,when the decision awarding her maintenance was made, and granted the defendant leave to entera money [*2]judgment for maintenance arrears, plus the sum of$1,500 as an attorney's fee. A money judgment was subsequently entered on July 26, 2006. Theplaintiff filed a notice of appeal from both the order dated July 7, 2006 and the money judgment,and obtained a statutory stay of enforcement of the money judgment pending appeal by postingan undertaking for the amount of the judgment (see CPLR 5519 [a] [2]).
Thereafter, the defendant moved to hold the plaintiff in contempt for failing to makemaintenance payments that became due, subsequent to entry of the money judgment, as aconsequence of the order dated July 7, 2006. In an order dated November 30, 2006, the plaintiffwas held in contempt and the defendant was awarded the sum of $2,000 as an attorney's fee(see Domestic Relations Law § 237 [c]). Although the plaintiff filed a notice ofappeal from that order, he did not seek a stay of its enforcement. Pursuant to the terms of theorder dated November 30, 2006, the plaintiff paid the sum of $54,000 in maintenance for theperiod from July 2006 until April 2007, plus the sum of $2,000 as an attorney's fee, for a totalsum of $56,000.
In a decision and order dated April 17, 2007, this Court reversed the money judgment, andaccordingly modified the order dated July 7, 2006 upon finding that the plaintiff's obligation topay maintenance terminated on January 9, 2006, or 10 years after the divorce action wascommenced (see Rader v Rader, 39AD3d 734 [2007]). In a decision and order on motion dated August 13, 2007, this Courtdismissed the plaintiff's appeal from the order dated November 30, 2006, for lack of prosecution.
By notice of motion dated June 20, 2007, the plaintiff moved for reimbursement of the sumsof $54,000 in maintenance and $2,000 in attorneys' fees he paid pursuant to the order datedNovember 30, 2006. In opposition, the defendant noted, inter alia, that the plaintiff neverperfected his appeal from the order dated November 30, 2006, and that she already spent thedisputed $56,000 on her living expenses and attorneys' fees. The Supreme Court, in an orderentered September 20, 2007, denied the plaintiff's motion. We affirm.
There is a strong public policy against recoupment of both pendente lite and permanentmaintenance paid pursuant to a court order or judgment which is subsequently set aside on appeal(see Redgrave v Redgrave, 25AD3d 973 [2006]; Coleman v Coleman, 61 AD2d 757 [1978]; Matter of Klein vKlein, 58 AD2d 811 [1977]; Rosenberg v Rosenberg, 42 AD2d 590 [1973];Grossman v Ostrow, 33 AD2d 1006 [1970]). The reason for this policy is thatmaintenance and child support payments are "deemed to have been devoted to that purpose, andno funds exist from which one may recoup moneys so expended" if the award is thereafterreversed or modified (Coleman v Coleman, 61 AD2d at 758). Although there areexceptions to this general rule (seeArcabascio v Arcabascio, 48 AD3d 606 [2008]; Vigliotti v Vigliotti, 260 AD2d470 [1999]; Samu v Samu, 257 AD2d 656 [1999]; Stimmel v Stimmel, 163AD2d 381 [1990]; Jacobs v Patterson, 143 AD2d 397, 398 [1988]), such exceptions arenot applicable to the instant case.
We note that if there are unpaid arrears of other obligations, such as carrying charges for themarital residence, the payor spouse may be granted a credit against those arrears for maintenancepaid pursuant to an order which was reversed on appeal (see Samu v Samu, 257 AD2d656 [1999]).
The appeal from the order dated November 30, 2006 was dismissed for lack of prosecution,and we decline to exercise our discretion to consider any issue which could have been raised onappeal therefrom (see McGrath vD'Angio-McGrath, 42 AD3d 440 [2007]; see also Rubeo v National Grange Mut.Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350, 353 [1976]). Fisher, J.P.,Balkin, McCarthy and Chambers, JJ., concur.