| Desautels v Desautels |
| 2011 NY Slip Op 00126 [80 AD3d 926] |
| January 13, 2011 |
| Appellate Division, Third Department |
| Lillian T. Desautels, Appellant-Respondent, v Robert A.Desautels, Respondent-Appellant. |
—[*1] The Harding Law Firm, Niskayuna (Charles R. Harding of counsel), forrespondent-appellant.
Spain, J. Appeals (1) from an order of the Supreme Court (Nolan Jr., J.), entered November5, 2009 in Saratoga County, which denied plaintiff's motion for a money judgment pursuant toDomestic Relations Law § 244 and for counsel fees, and (2) from an order of said court,entered November 5, 2009 in Saratoga County, which denied defendant's cross motion to modifythe parties' separation agreement.
Plaintiff and defendant were married in 1968 and are the parents of two grown children (bornin 1968 and 1969). The parties signed a separation agreement in 1988 which was incorporatedinto, but not merged with, a judgment of divorce in 1990. At the time of their divorce, the partiescontinued to own the marital residence, located in the City of Saratoga Springs, Saratoga County.The separation agreement indicates that plaintiff "shall have exclusive possession. . . until such time as the parties make other arrangements." "ARTICLE V:MAINTENANCE OF THE WIFE" provides that defendant agrees to continue to pay "theoperating and maintenance expenses of running the household," including the mortgage, utilities,[*2]taxes, lawn care and snow removal, plus $100 perweek.[FN1]The parties also agree, in a separate article entitled "COLLEGE EXPENSES," to pay "thereasonable expenses to provide for college education for each child according to their means."
In 1991, defendant transferred his one-half interest in the marital residence to plaintiff for nomonetary consideration. In 2005, defendant commenced an action to impose a constructive truston his behalf against the marital residence to the extent of a one-half interest and, additionally, toset aside or modify the separation agreement. In March 2007, Supreme Court granted plaintiffsummary judgment dismissing that part of defendant's action seeking to modify the separationagreement, but—after a bench trial—imposed a constructive trust upon one half ofthe former marital residence in defendant's favor and, on appeal by plaintiff, this Court affirmed(Desautels v Desautels, 58 AD3d 963 [2009]).
Shortly after Supreme Court's constructive trust decision, plaintiff moved for a moneyjudgment against defendant for arrears that she claimed were due to her under the separationagreement (see Domestic Relations Law § 244). Specifically, plaintiff sought (1)$125,076.69 for "operating and maintenance expenses" associated with the marital residence thatshe had incurred, including necessary maintenance and repairs, telephone services and lawn careand snow removal expenses, (2) defendant's share of their children's college tuition and expenses,and (3) counsel fees incurred as a result of defendant's failure to pay these expenses. Defendantopposed the motion and cross-moved for, among other things, modification of his supportobligation under the separation agreement.
Supreme Court, in an order dated December 4, 2008, denied defendant's cross motion,finding that defendant was collaterally estopped from seeking modification of the terms in theseparation agreement reasoning that those issues had already been litigated and determined indefendant's prior constructive trust action. After a hearing, in an order dated October 31, 2009,the court denied plaintiff's claim for reimbursement for improvements to the residence. The courtfound that the costs for renovations were not recoverable because (1) plaintiff herself had paidonly a nominal amount for the renovations and (2) the scope of the work exceeded defendant'sobligation under the separation agreement to pay for "operating and maintenance expense[s] ofrunning the household." Further, the court determined that plaintiff had released defendant fromhis obligations under the separation agreement to pay for telephone services, lawn care and snowremoval, or at least waived her right to seek reimbursement for those expenses. The court alsodenied plaintiff's claim for reimbursement of college expenses that she had paid out, finding, inrelevant part, that plaintiff had not established that defendant had failed to contribute to thechildren's college expenses "according to his means." The court also denied plaintiff's request forcounsel fees. Both of the court's orders were entered on November 5, 2009. Plaintiff now appealsfrom the October 2009 order and defendant appeals from the December 2008 order.
Domestic Relations Law § 244 provides a mechanism by which a court may enter a[*3]judgment directing the payment of arrears "[w]here a spousein an action for divorce . . . defaults in paying any sum of money as required. . . by the terms of an agreement . . . incorporated by reference in ajudgment" (Domestic Relations Law § 244; see Holloway v Holloway, 35 AD3d 1126, 1127-1128 [2006]). Inorder to assess plaintiff's entitlement to a money judgment under Domestic Relations Law§ 244, Supreme Court was required to interpret the separation agreement, which "is alegally binding, independent contract between the parties so long as it is not merged into thedivorce decree" (Mills v Mills, 22AD3d 1003, 1003 [2005]) and "must be interpreted so as to give effect to the parties'intentions" (Matter of Heinlein vKuzemka, 49 AD3d 996, 997 [2008]). "[T]he parties' intent 'must be determined inconformity with ordinary contract law; thus, any ambiguity in the agreement's terms must beresolved by determining the parties' intent at the time of contracting, either from within the fourcorners of the document, if possible, or, as a last resort, from whatever extrinsic evidence isavailable' " (Bjerke v Bjerke, 69AD3d 1042, 1044 [2010], quoting Cortese v Redmond, 199 AD2d 785, 786 [1993]).The court is not "limited to the literal language of the agreement, but should also include aconsideration of whatever may be reasonably implied from that literal language" (Hewlett vHewlett, 243 AD2d 964, 966 [1997], lvs dismissed 91 NY2d 887 [1998], 95 NY2d778 [2000]; accord Cheruvu vCheruvu, 61 AD3d 1171, 1174 [2009]).
Here, with regard to her claims under the provision for reimbursement of expenses fortelephone services, lawn care and snow removal, plaintiff acknowledged during the hearing thatdefendant paid her telephone bills until 1993, and only ceased doing so after she verbally agreedto take the responsibility for those bills. She also admitted that defendant personally performedlawn care and snow removal at the residence until defendant deeded her his half of the residence;at that time, she told him that she would take responsibility for those costs and obligations andthat he no longer needed to come and perform the work.
Supreme Court's denial of plaintiff's claim for reimbursement for these three specific items ofresponsibility should be reversed. Notwithstanding plaintiff's admissions, the separationagreement contains a provision stating that "[t]he failure of either party to insist in any one ormore instances upon the strict performance of any of the terms of this agreement. . . shall not be construed as a waiver or relinquishment for the future ofany term . . . and the same shall continue in full force and effect. No waiver orrelinquishment shall be deemed to have been made by either party, unless in writing dulysigned by such party" (emphases added). Thus, under the clear, unambiguous terms of the parties'contract, a writing signed by plaintiff was required for her to relinquish or waive her right underthe agreement to insist on defendant's performance of its terms. Because there was no signedwriting, it was error for the court to find that plaintiff released defendant from his obligations orotherwise waived her right to seek reimbursement for telephone, lawn care and snow removalexpenses. Accordingly, this matter should be remitted to Supreme Court for a final determinationof the reasonable amount due for said claimed expenses, with due consideration, as the courtdeems appropriate, to plaintiff's admission that defendant had been performing the lawn andsnow removal himself, saving considerable expense, and that the expenses incurred by plaintiffare largely attributable to her release—albeit not enforceable—of his obligation todo so.
However, the bulk of the judgment sought by plaintiff—over $100,000—arisesfrom her claim for reimbursement for repairs and renovations that she performed relating to theresidence. The record amply supports Supreme Court's denial of plaintiff's claim forreimbursement for these costs on the basis that they were not within the scope of defendant'sobligation by a plain reading of the maintenance provision of the separation agreement, whichclearly does not include [*4]major repairs and renovations.
As to Supreme Court's denial of plaintiff's claim for reimbursement of the children's collegeexpenses, it is undisputed that defendant paid for the first two years of each child's collegeeducation. This undisputed fact, as well as defendant's testimony that he contributedapproximately $6,500 to the children's education, which the court found to be credible, fullysupport the court's finding that plaintiff failed to show that defendant did not contribute to thechildren's college education according to his means. Moreover, as the court found, it is unclearwhere plaintiff obtained the money to make the alleged payments that she made to EmersonCollege; she testified that she earned some of the money, but acknowledged that her mother gaveor loaned her some money as well. Thus, under these circumstances, and where plaintiff's actualcontribution to the expenses cannot be determined from the record, it was not error for the courtto find that she has failed to establish her entitlement to reimbursement.
We also reject plaintiff's request that this Court penalize defendant for his willful violation ofthe agreement by awarding her prejudgment interest. Such an award would be authorized underDomestic Relations Law § 244 if a party's default in payment were willful "in that theobligated spouse knowingly, consciously and voluntarily disregarded the obligation under alawful court order" (see Parnes vParnes, 41 AD3d 934, 937 [2007]). Here, an award of prejudgment interest would beinappropriate in that either defendant did not default on his obligations under the agreement orhis default cannot be said to have been willful because it was based upon "a sincere, thoughmistaken, belief that payments were not required" (Parnes v Parnes, 41 AD3d at 937;compare Vicinanzo v Vicinanzo, 233 AD2d 715, 716 [1996]).
Although plaintiff was not automatically entitled to an award of counsel fees becausedefendant was not found to be in willful violation of a court order, Domestic Relations Law§ 238 authorizes a court in its discretion to award counsel fees in an enforcementproceeding to compel the payment of money (see Cheruvu v Cheruvu, 61 AD3d at 1175;Webber v Webber, 30 AD3d723, 725 [2006]; Markhoff v Markhoff, 225 AD2d 1000, 1002 [1996], lvdenied 88 NY2d 807 [1996]; compare Domestic Relations Law § 237).However, we cannot say that Supreme Court's denial of plaintiff's application for counsel feeswas an abuse of discretion given that, among other factors, plaintiff is seeking payment fromdefendant for maintenance expenses she admittedly told him he did not need to pay.
In defendant's appeal, he challenges Supreme Court's denial of his cross motion formodification of his support obligation, arguing that the court's sua sponte application of collateralestoppel was error. As to the merits, defendant urges that, due to the children's full emancipation,the maintenance provisions of the judgment of divorce should be modified and that portion of hisobligations intended to be child support should be eliminated. Although he is correct thatplaintiff never raised the affirmative defense of collateral estoppel in response to his crossmotion, thereby waiving it (see CPLR 3018 [b]; 3211 [a] [5]; [e]; Braunsdorf vHaywood, 295 AD2d 731, 732 [2002]), on the merits, defendant's claim that the portion ofthe separation agreement intended to be child support for his now grown children is ambiguouslacks support in the record. A fair reading of the document reflects no ambiguity but, rather, thatdefendant agreed to provide plaintiff with a somewhat generous maintenance package andplaintiff agreed to maintain and support the children out of that maintenance, impliedly waivingchild support. Defendant's argument that his maintenance obligations continue to include childsupport is not [*5]convincing. The agreement reflects noprovision for basic child support,[FN2]and defendant has failed to offer any evidence of the hardship necessary to justify a modification(see Domestic Relations Law § 236 [B] [9] [b]). Accordingly, defendant's crossmotion to modify or adjust his maintenance was properly denied.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order dated October31, 2009 and entered November 5, 2009 is modified, on the law, without costs, by reversing somuch thereof as denied that part of plaintiff's motion seeking reimbursement for unpaidtelephone, lawn care and snow removal expenses; motion granted to said extent and matterremitted to the Supreme Court for further proceedings not inconsistent with this Court's decision;and, as so modified, affirmed. Ordered that the order dated December 4, 2008 and enteredNovember 5, 2009 is affirmed, without costs.
Footnote 1: The agreement contains nospecific article under the heading of child support. In "ARTICLE IV: CUSTODY ANDVISITATION," the parties agree that plaintiff will have custody of the children and that sheagrees to "maintain and support [the children] out of maintenance given to [her] by [defendant]."
Footnote 2: The "COLLEGE EXPENSES"provision, which is a form of child support (see Domestic Relations Law § 240[1-b] [c] [7]), is not relevant to this analysis.