| Parker v Navarra |
| 2013 NY Slip Op 00467 [102 AD3d 935] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Kathleen Parker, Also Known as Kathleen Navarra,Respondent, v Dominick Navarra, Appellant. |
—[*1] Terry D. Horner, Poughkeepsie, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment dated July22, 2004, the defendant appeals, as limited by his brief, from so much of an order of theSupreme Court, Dutchess County (Brands, J.), dated January 12, 2012, as upon, in effect,denying his application for an evidentiary hearing, granted the plaintiff's motion toenforce the medical insurance and maintenance obligations set forth in a settlementagreement dated April 20, 2004, which was incorporated but not merged into thejudgment of divorce.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties were married in 1962 and divorced in 2004. Their separation agreement,which was incorporated but not merged into the judgment of divorce, required thedefendant to pay one half of the plaintiff's medical insurance premiums and to paymonthly maintenance in the sum of $5,300 for the first 10 years. It is undisputed that, in2007, the defendant started paying the plaintiff only $3,000 in monthly maintenance. Atabout that time, the plaintiff's attorney wrote to the defendant protesting any reduction. InAugust 2011, after the defendant allegedly informed the plaintiff that he intended toreduce the payments even further, to only $800 per month, the plaintiff moved to enforcethe separation agreement, seeking amounts representing arrears in maintenance andmedical premium payments under the terms of the separation agreement.
The defendant opposed the motion, alleging that the parties had orally modified themaintenance provisions of the separation agreement and, alternatively, that the plaintiffshould be equitably estopped from enforcing the maintenance provisions of theseparation agreement. The defendant requested an evidentiary hearing so that he couldpresent the testimony of witnesses on those issues, but did not file a cross motion tomodify the separation agreement. The Supreme Court, in effect, denied the defendant'srequest for an evidentiary hearing and, based on the parties' submissions, granted theplaintiff the relief that she requested. The defendant appeals, raising the sole contentionthat the Supreme Court erred in denying his request for an evidentiary hearing to presentwitness testimony.
Where, as here, the parties' separation agreement contains a provision that expresslyprovides that modifications must be in writing, an alleged oral modification isenforceable only if [*2]there is part performance that isunequivocally referable to the oral modification (see B. Reitman Blacktop, Inc. v Missirlian, 52 AD3d 752,753 [2008]; Healy vWilliams, 30 AD3d 466, 467-468 [2006]; General Obligations Law §15-301 [1]). The defendant did not demonstrate that the plaintiff's acceptance of reducedmonthly maintenance payments was unequivocally referable to an alleged oralmodification by, for example, demonstrating that consideration was given in exchangefor the plaintiff's alleged oral agreement to accept reduced maintenance payments(see Gomes v Gomes, 303 AD2d 454 [2003]; Gower v Gower, 240AD2d 632 [1997]; cf. Healy v Williams, 30 AD3d at 467-468; Kayser v Kayser, 18 AD3d441, 442 [2005]). Thus, he failed to make a showing sufficient to entitle him to ahearing on this issue.
To establish equitable estoppel, the defendant was required to show that theplaintiff's conduct "induced [his] significant and substantial reliance upon an oralmodification," and that the "conduct relied upon to establish estoppel [was] not otherwise. . . compatible with the agreement as written" (Rose v Spa RealtyAssoc., 42 NY2d 338, 344 [1977]; see Sparer v Sparer, 227 AD2d 613[1996]). Here, the plaintiff's acceptance of the reduced maintenance payments wascompatible with the agreement as written, which contained a clause providing that anywaiver of strict enforcement of a provision of the agreement did not constitute a waiverof the party's right "to strictly enforce the provision waived at a later time." As thedefendant failed to allege facts demonstrating that the plaintiff's conduct wasincompatible with the written agreement, the Supreme Court properly denied his requestfor a hearing on the issue of equitable estoppel.
The defendant's remaining contention is raised for the first time on appeal and, thus,is not properly before this Court. Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.