| Katz v Katz |
| 2008 NY Slip Op 07873 [55 AD3d 680] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Adam Katz, Respondent-Appellant, v Robin Katz,Appellant-Respondent. |
—[*1] Jeffrey S. Schecter & Associates, P.C., Garden City, N.Y. (Bryce R. Levine of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for breach of a separation agreement, the defendantappeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County(Stack, J.), dated May 22, 2007, as denied her motion to dismiss the complaint pursuant to CPLR3211 (a) (7) and the plaintiff cross-appeals, as limited by his brief, from so much of the same order asdenied those branches of his cross motion which were to recover damages in connection with thedefendant's alleged holdover occupancy of the marital premises and for an award of an attorney's fee inconnection with that branch of his cross motion which was to hold her in contempt for her willfulviolation of a so-ordered stipulation dated September 28, 2006, and denied his separate cross motionto compel certain depositions.
Ordered that the order is modified, on the law and the facts, by deleting the provision thereofdenying those branches of the defendant's motion which were to dismiss the causes of action seeking arefund of maintenance and child support payments and substituting therefor a provision granting thosebranches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealedfrom, with costs to the defendant.
In August 2004 the plaintiff husband Adam Katz (hereinafter the husband) commenced an actionfor a divorce and related relief. On October 12, 2005 the parties entered into a separation agreement,pursuant to which they agreed to have joint legal custody of their five children, with the husbandagreeing to pay the sum of $10,000 per month for child support and $10,000 per month in [*2]maintenance to the defendant wife Robin Katz (hereinafter the wife).Additionally, the separation agreement provided that the wife would have exclusive occupancy of themarital residence until, inter alia, the husband was able to provide a replacement residence. The maritalresidence is owned by a limited liability company (hereinafter the LLC) whose sole member is thehusband.
The parties appeared before the Supreme Court for an allocution concerning the separationagreement. The matrimonial action was subsequently discontinued.
In July 2006 the husband commenced this action, seeking a suspension of his child support andmaintenance obligations pursuant to the separation agreement, on the grounds of custodial interferenceand parental alienation, and a refund of all child support and maintenance payments he had previouslymade. Thereafter, the husband purchased real property which he offered to the wife as a replacementresidence. In a so-ordered stipulation dated September 28, 2006, the parties agreed that the wifewould vacate the marital residence on or before November 10, 2006, provided that any problems withthe replacement residence were resolved. However, the wife did not vacate the marital residence as ofNovember 10, 2006.
The wife moved to quash a subpoena and notices to take deposition that were served upon her andher housekeeper. The husband cross-moved, by order to show cause, inter alia, to hold the wife incontempt for violating the so-ordered stipulation dated September 28, 2006, for an award of anattorney's fee incurred in connection with making the motion, and to recover compensatory and punitivedamages in connection with her holdover occupancy of the marital residence; he separatelycross-moved to compel compliance with the subpoena and notices to take deposition. The wifethereafter separately moved to dismiss the complaint pursuant to CPLR 3211 (a) (7). The SupremeCourt, inter alia, denied the husband's cross motion to hold the wife in contempt, to recover damages inconnection with her holdover occupancy of the marital residence, and for an award of an attorney's feein connection with the contempt branch of the motion, and denied his separate cross motion to compelcompliance with the subpoena and notices to take deposition. Additionally, the court denied the wife'sseparate motion to dismiss the complaint.
The wife appeals from so much of the order as denied her motion to dismiss the complaint. Thehusband cross-appeals from so much of the order as denied that branch of his cross motion which wasto hold the wife in contempt, to recover damages, and for an award of an attorney's fee, and from somuch of the order as denied his separate cross motion to compel certain depositions. We modify.
In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court shouldaccept the facts alleged in the complaint as true and afford the proponent of the complaint the benefit ofevery possible favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Goldfarb v Schwartz, 26 AD3d 462,463 [2006]; Fast Track Funding Corp. vPerrone, 19 AD3d 362, 362-363 [2005]).
Applying these principles to the instant matter, the husband's complaint states a cause of action forthe suspension of his obligation to pay child support and maintenance. A court has the authority tosuspend a noncustodial parent's obligation to pay child support and/or maintenance when it finds thatthe custodial parent has deliberately frustrated or actively interfered with the noncustodial parent'svisitation rights (see Domestic Relations Law § 241; Ledgin v Ledgin, 36 AD3d 669, 670 [2007]; Matter of OrangeCounty Dept. of Social Servs. v Meehan, 252 AD2d 588, 590 [1998]; [*3]Hiross v Hiross, 224 AD2d 662, 663 [1996]; Matter of Welsh vLawler, 144 AD2d 226, 228 [1988]; Courten v Courten, 92 AD2d 579, 581 [1983]). Inthe complaint, the husband alleged several incidents in which the wife interfered with his parenting timeand denied him telephone contact with the children. Consequently, the Supreme Court properly deniedthose branches of the wife's separate motion which were to dismiss the causes of action seeking asuspension of child support and maintenance.
However, the causes of action seeking a refund of maintenance and child support should have beendismissed. Recoupment of maintenance may be permitted where payment is contrary to public policy orpayment is made after the active concealment by the payee spouse of an event which would trigger thecessation of spousal support (see e.g. Stimmel v Stimmel, 163 AD2d 381 [1990]; Jacobs vPatterson, 143 AD2d 397 [1988]). Here, there are no allegations of this nature. With respect tochild support, there is a strong public policy against restitution or recoupment of any overpayment(see Matter of Tompkins County Support Collection Unit v Chamberlain, 305 AD2d 813[2003]; Matter of Maksimyadis v Maksimyadis, 275 AD2d 459 [2000]; Baraby v Baraby,250 AD2d 201 [1998]). Here, the husband's child support obligation was agreed upon by theparties and was not set by the court's application of the Child Support Standards Act (DomesticRelations Law § 240 [1-b]). Consequently, his causes of action to recoup child support andmaintenance cannot be sustained.
The Supreme Court providently exercised its discretion in denying that branch of the husband'sseparate cross motion which was to compel the deposition of the wife (see Gilman & Ciocia, Inc. v Walsh, 45AD3d 531 [2007]; Gillen v Utica FirstIns. Co., 41 AD3d 647 [2007]). Moreover, the husband failed to demonstrate that therewere special circumstances warranting disclosure from the nonparty housekeeper (see Moran v McCarthy, Safrath & Carbone,P.C., 31 AD3d 725, 726 [2006]; Tannenbaum v Tenenbaum, 8 AD3d 360 [2004]).
Contrary to the husband's contentions, made in connection with his contempt motion, he lackedstanding to recover compensatory damages, i.e., rent or use and occupancy charges, for the period ofthe wife's alleged "holdover occupancy" of the marital residence. Here, the former marital residencewas owned by the LLC, of which the husband is the sole member. Since the husband is merely amember of the LLC, he does not have the right to recover rent and other damages from the wife in hisindividual capacity (see Limited Liability Company Law § 610). Further, the husbanddid not demonstrate that the wife should be held in contempt of the so-ordered stipulation datedSeptember 28, 2006. In order to prevail on a motion to punish a party for civil contempt, the movantmust demonstrate that the party charged with the contempt violated a clear and unequivocal courtorder, thereby prejudicing a right of another party to the litigation (see Judiciary Law §753 [A] [3]; Gloveman Realty Corp. vJefferys, 29 AD3d 858, 859 [2006]; Vujovic v Vujovic, 16 AD3d 490, 491 [2005]). The contempt must beproven by clear and convincing evidence (see Vujovic v Vujovic, 16 AD3d at 491).
Although the so-ordered stipulation dated September 28, 2006, may be considered a court order(see Fuerst v Fuerst, 131 AD2d 426, 426-427 [1987]), the language in the so-orderedstipulation did not constitute a clear and unequivocal mandate directing the wife to vacate the maritalresidence on or before November 10, 2006. The so-ordered stipulation predicated her obligation tovacate the residence upon the husband's resolution of problems with the replacement residence, and hefailed to demonstrate that he discharged this obligation. As there was no showing by clear andconvincing evidence that the wife willfully failed to obey a mandate of the court, the Supreme Courtproperly denied that branch of the husband's cross motion which was to hold the wife in contempt, andalso properly denied that branch of his cross motion which was for an award of an attorney's feeincurred [*4]in connection therewith. Skelos, J.P., Fisher, Dickersonand Belen, JJ., concur.