| Hannigan v Hannigan |
| 2013 NY Slip Op 01531 [104 AD3d 732] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Mary Jean Mezzina Hannigan,Respondent-Appellant, v John Hannigan,Appellant-Respondent. |
—[*1] Glenn S. Koopersmith, Garden City, N.Y., for respondent-appellant.
In a matrimonial action in which the parties were divorced by judgment datedNovember 18, 1992, the defendant appeals, as limited by his brief, from so much of anorder of the Supreme Court, Nassau County (Brown, J.), entered February 17, 2011, as,upon a decision of the same court dated September 24, 2010, made after a hearing,granted those branches of the plaintiff's motion which were, in effect, to direct him to payarrears for college expenses for the 2004/05, 2005/06, and 2006/07 school years, andgranted those branches of the plaintiff's separate motion which were, in effect, to directhim to pay child support arrears for the years 2003, 2006, and 2008, and the plaintiffcross-appeals, as limited by her brief, from so much of the same order as denied thatbranch of her motion which was to direct the defendant to pay his pro rata share ofcollege expenses for the parties' daughter for the 2008/09 school year, and, in effect,denied those branches of her second motion which were, in effect, to direct the defendantto pay child support arrears for the years 2004, 2005, and 2007.
Ordered that the order is modified, on the law and the facts, by deleting the provisionthereof granting those branches of the plaintiff's second motion which were, in effect, todirect the defendant to pay child support arrears for the years 2003 and 2006, andsubstituting therefor a provision denying those branches of the plaintiff's second motion;as so modified, the order is affirmed insofar as appealed and cross-appealed from,without costs or disbursements, and the matter is remitted to the Supreme Court, NassauCounty, for recalculation of the defendant's arrears in accordance herewith.
The parties are the parents of twins, John and Jenny, born in 1986. Followingcommencement of a divorce action, the parties executed a stipulation of settlement(hereinafter the Stipulation), which was subsequently incorporated, but not merged, intoa judgment of divorce dated November 18, 1992.
The Stipulation provided that the father's monthly child support obligation shall beadjusted as of January 1 of each calendar year and shall be either 25% of the father'sgross income [*2]or the sum of $5,000 per month,adjusted by the Consumer Price Index for the Greater New York area, "whichever isgreater."
The Stipulation further provided that the parties agreed to pay for the undergraduateand postgraduate education of each of the unemancipated children of the marriage "inproportion to their respective incomes at the time such expenses [are] incurred." TheStipulation contained a "Modification and Waiver" clause providing: "[N]either thisStipulation, nor any provision hereof, shall be amended or modified, or deemed amendedor modified, except by a Stipulation in writing duly subscribed and acknowledged withthe same formality as this Stipulation. Any waiver by either party of any provision of thisStipulation or any right or option hereunder shall not be deemed a continuing waiver, andshall not prevent or estop such party from thereafter enforcing such provision, right oroption, and the failure of either party to insist in any one or more instances upon the strictperformance of any of the terms or provisions of this Stipulation by the other party shallnot be construed as a waiver or relinquishment for the future of any such term orprovision, but the same shall continue in full force and effect."
In July 2008, the mother moved (hereinafter the July motion), inter alia, to direct thefather to pay "additional child support" arrears for the years 2004, 2005, and 2007, ineffect, to direct the father to pay arrears for college expenses for the 2004/05, 2005/06,and 2006/07 school years, and to direct the father to pay his pro rata share of Jenny'scollege expenses for the 2008/09 school year. In her supporting affidavit, the mothercontended that the Stipulation obligated the defendant to pay "basic child support in thesum of $5,000 monthly based upon his income of $240,000" and that the defendant wasobligated to pay as "additional child support," 25% of his income over $240,000. Usingthe 25% formula, the mother requested that the father be directed to pay $7,368 inadditional child support for the year 2004, $4,943 in additional child support for the year2005, and an amount to be determined by the court in additional child support for theyear 2007. The mother stated that the father "appears to owe no additional child supportfor 2006 as his income, as reflected on his income tax return, did not exceed $240,000."In his opposition papers, the father admitted that based on the 25% formula, he owed themother additional child support for the years 2004, 2005, and 2007 in the sums of$7,368, $4,943 and $768, respectively, and the father tendered a check to the motherdated September 12, 2008, in the sum of $13,079. In October 2008, the mother made asecond motion (hereinafter the October motion), inter alia, in effect, to direct the father topay child support arrears for the years 2003 through 2008. In the October motion, themother calculated the father's child support obligation as $5,000 per month, adjusted bythe Consumer Price Index for the Greater New York area, instead of 25% of the father'sincome.
After a hearing on both motions, the Supreme Court, inter alia, granted thosebranches of the July motion which were, in effect, to direct the father to pay arrears forcollege expenses for the 2004/05, 2005/06, and 2006/07 school years, denied that branchof the July motion which was to direct the father to pay his pro rata share of Jenny'scollege expenses for the 2008/09 school year, granted those branches of the Octobermotion which were to direct the father to pay child support arrears for the years 2003,2006, and 2008, and, in effect, denied those branches of the October motion which were,in effect, to direct the father to pay child support arrears for the years 2004, 2005, and2007.
The Supreme Court properly denied those branches of the October motion whichwere to direct the father to pay child support arrears for the years 2004, 2005, and 2007,and, moreover, should have also denied those branches of the October motion whichwere to direct the father to pay child support arrears for the years 2003 and 2006."Contractual rights may be waived if they are knowingly, voluntarily and intentionallyabandoned" (FundamentalPortfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 104 [2006];see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184[1982]). "Such abandonment 'may be established by affirmative conduct or by [*3]failure to act so as to evince an intent not to claim apurported advantage' " (Fundamental Portfolio Advisors, Inc. v Tocqueville AssetMgt., L.P., 7 NY3d at 104, quoting General Motors Acceptance Corp. vClifton-Fine Cent. School Dist., 85 NY2d 232, 236 [1995]; see Hadden vConsolidated Edison Co. of N.Y., 45 NY2d 466, 469 [1978]). "Generally, theexistence of an intent to forgo such a right is a question of fact" (FundamentalPortfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d at 104; seeJefpaul Garage Corp. v Presbyterian Hosp. in City of N.Y., 61 NY2d 442, 446[1984]). Here, is clear from the explicit language of the July motion that the mother wasseeking additional child support arrears for the years 2004, 2005, and 2007 using the25% formula, and that she did not seek additional child support arrears for the years 2003or 2006 because the father had not earned income over $240,000 for those years.Accordingly, when the father paid the mother $13,079 by check, the entire amountoriginally sought by the mother as accrued additional child support arrears for the years2003 through 2007, and the mother accepted and cashed the check, as she testified thatshe did, the mother waived her right to demand additional child support arrears basedupon the Consumer Price Index formula (see Matter of Horowitz v Horowitz, 40 AD3d 640, 641[2007]; Frankel v Siravo, 278 AD2d 66, 67 [2000]). Moreover, the mother's owntestimony that she "never intended to ask for [an increase based on the Consumer PriceIndex formula]" evidenced a manifestation of intent to relinquish that contractual right(see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7NY3d at 104). Contrary to the mother's suggestion, "[a] waiver, to the extent that it hasbeen executed, cannot be expunged or recalled" (Nassau Trust Co. v MontroseConcrete Prods. Corp., 56 NY2d at 184).
However, the Supreme Court properly determined that the mother was entitled tochild support arrears based on the Consumer Price Index formula for 2008, since she hadnot requested, or received, additional child support for 2008 at the time of the Octobermotion. Based on the clear and unambiguous language of the Stipulation's "Modificationand Waiver" provision, the mother's past waiver of her right to adjustments based on theConsumer Price Index formula could not be construed as a waiver of the same for thefuture, and there is no other basis in the record to conclude that the mother waived herright to adjustments based on the Consumer Price Index formula with regard to 2008.
The Supreme Court also properly granted those branches of the July motion whichwere, in effect, to direct the father to pay arrears for college expenses for the 2004/05,2005/06, and 2006/07 school years. The Stipulation required the parties to payeducational expenses on a pro rata basis, "in proportion to their respective incomes at thetime such expenses [are] incurred." The father contends that the parties orally modifiedthe Stipulation to split the college expenses 50/50 instead of on a pro rata basis."Generally, a written agreement which prohibits oral modification can only be changedby an 'executory agreement . . . in writing' " (Calica v Reisman, Peirez& Reisman, 296 AD2d 367, 368 [2002], quoting General Obligations Law §15-301 [1]; see Fairchild Warehouse Assoc. v United Bank of Kuwait, 285AD2d 444, 445 [2001]). "However, an oral modification is enforceable if the partyseeking enforcement can demonstrate partial performance of the oral modification, whichperformance must be unequivocally referable to the modification" (Calica v Reisman,Peirez & Reisman, 296 AD2d at 369; see Rose v Spa Realty Assoc., 42NY2d 338, 343-344 [1977]; Healy v Williams, 30 AD3d 466, 467 [2006]; Kayser v Kayser, 18 AD3d441, 442 [2005]). "[I]n order to be unequivocally referable, conduct must beinconsistent with any other explanation" (Richardson & Lucas, Inc. v New YorkAthletic Club of City of N.Y., 304 AD2d 462, 463 [2003]; see Barretti v Detore, 95 AD3d803, 806 [2012]). Here, while the father testified that the parties orally agreed tosplit the college expenses 50/50, instead of on a pro rata basis, the mother testified thatshe only agreed to pay 50% of the college expenses up front, with the understanding thatthe parties would "settle up" later. There is no basis in the record to set aside the hearingcourt's determination to credit the mother's testimony on this matter (see NorthernWestchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983]; Kun v Fulop, 71AD3d 832, 833 [2010]). Crediting the mother's testimony, the mother's actions inpaying 50% of the college expenses were not unequivocally referable to the modificationthat the father alleges was made (see Rose v Spa Realty Assoc., 42 NY2d at343-344; Calica v Reisman, Peirez & Reisman, 296 AD2d at 369; cf. Healy v Williams, 30 AD3d466, 467-468 [2006]).
The Supreme Court properly denied that branch of the July motion which was to[*4]direct the father to pay his pro rata share of Jenny'scollege expenses for the 2008/09 school year. The Stipulation only required the parties topay college expenses of "unemancipated" children, and provided that the children wouldbe deemed to have become emancipated upon attaining the age of 21, except thatemancipation would be delayed "if, and so long as, the child continuously pursues acollege and post graduate education on a full-time basis." Since it is undisputed thatJenny did not attend college during the Fall semester of 2007, she became emancipatedas of her 21st birthday in 2007.
The parties' remaining contentions either are without merit or are not properly beforethis Court. Rivera, J.P., Lott, Sgroi and Cohen, JJ., concur.