| Markell v Markell |
| 2012 NY Slip Op 00496 [91 AD3d 832] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Donna Markell, Respondent, v Robert Markell,Appellant. |
—[*1] Donna Markell, Cortlandt Manor, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the defendant appeals (1) from an order of theSupreme Court, Westchester County (Tolbert, J.), dated January 14, 2011, which denied hismotion to modify stated portions of the parties' judgment of divorce dated December 10, 2002,inter alia, directing him to pay child support on the first of each month and two thirds of thechildren's unreimbursed health care expenses after the plaintiff paid the initial $500 per child, toreflect the terms of the parties' stipulation of settlement dated May 14, 2002, and the findings offact and conclusions of law of the same court dated December 10, 2002, among other things,requiring him to pay child support on the fifteenth day of each month and only one half of thechildren's unreimbursed health care expenses after the plaintiff paid the initial sum of $500 perchild and (2), as limited by his brief, from so much of an order of the same court entered March11, 2011, as, upon reargument, adhered to the original determination in the order dated January14, 2011.
Ordered that the appeal from the order dated January 14, 2011, is dismissed, as that orderwas superseded by the order entered March 11, 2011, made upon reargument; and it is further,
Ordered that the order entered March 11, 2011, is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to the determination in the order dated January 14,2011, denying those branches of the defendant's motion which were to modify those portions ofthe parties' judgment of divorce directing him to pay child support on the first day of each monthand to pay two thirds of the children's unreimbursed health care expenses after the plaintiff paidthe initial sum of $500 per child, and substituting therefor a provision, upon reargument, vacatingthat determination and thereupon granting those branches of the defendant's motion which wereto modify the judgment of divorce so as to require him to pay child support on the fifteenth dayof every month and only one half of the children's unreimbursed health care expenses after theplaintiff pays the initial sum of $500 per child, consistent with the provisions of the stipulation ofsettlement and the findings of fact and conclusions of law; as so modified, the order enteredMarch 11, 2011, is affirmed insofar as appealed from; and it is further,[*2]
Ordered that one bill of costs is awarded to the defendant.
In a stipulation of settlement dated May 14, 2002, the plaintiff former wife and the defendantformer husband agreed, inter alia, that the defendant would pay child support on the fifteenth dayof each month, and that unreimbursed health care expenses for their children would be dividedequally after the plaintiff paid the initial sum of $500 per child. The Supreme Court issuedfindings of fact and conclusions of law dated December 10, 2002, which reflected thisagreement. However, the judgment of divorce, which was entered on December 10, 2002,provided that the defendant was to pay child support on the first day of each month and twothirds of the children's unreimbursed health care expenses after the plaintiff paid the initial $500per child. On or about December 10, 2010, the defendant moved to modify the judgment ofdivorce to "accurately reflect the provisions of the December 10, 2002 Findings of Fact andConclusions of Law and [the] parties' May 14, 2002 Stipulation of Settlement." The SupremeCourt denied the motion and, upon reargument, adhered to its original determination. TheSupreme Court determined that the husband's motion to modify the judgment was barred by thedoctrine of laches, in that he waited eight years to make the motion. The defendant appeals. Wemodify the order made upon reargument.
"The doctrine of laches is an equitable doctrine which bars the enforcement of a right wherethere has been an unreasonable and inexcusable delay that results in prejudice to a party. Themere lapse of time without a showing of prejudice will not sustain a defense of laches. Inaddition, there must be a change in circumstances making it inequitable to grant the reliefsought" (Skrodelis v Norbergs, 272 AD2d 316, 316 [2000] [citations omitted]; seeCohen v Krantz, 227 AD2d 581, 582 [1996]). Notably, "[p]rejudice may be established by ashowing of injury, change of position, loss of evidence, or some other disadvantage resultingfrom the delay" (Skrodelis v Norbergs, 272 AD2d at 316-317).
Here, in support of his motion, the defendant demonstrated that the subject provisions of thejudgment were the result of a clerical error, as the parties had been adhering to the terms of thestipulation of settlement for approximately eight years, and that the plaintiff had only recentlyinformed him at a Family Court proceeding that the judgment contained terms different fromthose in the stipulation of settlement and findings of fact and conclusions of law. In opposition,the plaintiff, in effect, conceded that the parties had been complying with their stipulation ofsettlement since it was executed in May 2002. Since the parties had been operating under theterms of the stipulation of settlement for approximately eight years prior to the husband's motion,the plaintiff failed to demonstrate a change in circumstances that would render inequitable therelief sought by the defendant. Further, the plaintiff failed to show that she would be prejudicedby a modification of the judgment to accurately reflect the provisions contained in the stipulationof settlement and findings of fact and conclusions of law (see generally Matter of Kuhn vTown of Johnstown, 248 AD2d 828 [1998]).
The defendant's remaining contentions are without merit. Dillon, J.P., Angiolillo, Florio andDickerson, JJ., concur.