| Matter of Hinck v Hinck |
| 2014 NY Slip Op 00224 [113 AD3d 681] |
| January 15, 2014 |
| Appellate Division, Second Department |
| In the Matter of Kerry Hinck, Respondent, v CraigHinck, Appellant. |
—[*1] Robert J. Del Col, Smithtown, N.Y. (Joseph S. Gulino of counsel), forrespondent.
In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) anorder of the Family Court, Suffolk County (Parisi, S.M.), dated October 18, 2012, which,after a hearing, directed the entry of a money judgment in favor of the mother and againsthim in the sum of $7,500 for maintenance arrears, (2) an order of the same court (Parisi,S.M.), dated October 19, 2012, which, after a hearing, directed the entry of a moneyjudgment in favor of the mother and against him in the sum of $45,000 for child supportarrears, (3) so much of an order of the same court (Hoffmann, J.), dated December 13,2012, as denied his objections to the order dated October 19, 2012, directing the entry ofa money judgment against him in the sum of $45,000 for child support arrears andgranted his objection to the order dated October 18, 2012, directing the entry of a moneyjudgment against him in the sum of $7,500 for maintenance arrears only to the extent ofreducing his payment to $7,200 for such arrears, (4) an amended order of the same court(Parisi, S.M.), entered December 26, 2012, which, inter alia, directed him to pay to themother the sum of $45,000 for child support arrears, and (5) an amended order of thesame court (Parisi, S.M.), also entered December 26, 2012, which directed the entry of amoney judgment in favor of the mother and against him in the sum of $7,200 inmaintenance arrears.
Ordered that the appeals from the orders dated October 18, 2012, and October 19,2012, are dismissed, as those orders were superseded by the order dated December 13,2012, and the amended orders; and it is further,
Ordered that the order dated December 13, 2012, is affirmed insofar as appealedfrom; and it is further,[*2]
Ordered that the amended orders are affirmed;and it is further,
Ordered that one bill of costs is awarded to the mother.
The parties were married and had two children together. Subsequently, they weredivorced and entered into a stipulation of settlement, which was incorporated but notmerged into the judgment of divorce. Under the terms of the stipulation, the father wasobligated to pay the mother child support in the sum of $2,500 per month andmaintenance in the sum of $400 per month. Thereafter, the mother commenced a separateplenary action in the Supreme Court seeking to set aside the stipulation. During themonths of April 2008 through September 2009, the mother did not cash the checks thatthe father sent to her in accordance with his support obligations, because her counsel inthe plenary action advised that to do so would ratify the terms of the stipulation she wastrying to set aside.
Subsequently, the mother's plenary action was dismissed and, according to themother, when she requested that the father issue a new check to cover the child supportand maintenance payments that she had previously declined to cash, he refused. Themother then filed the instant petition in Family Court on March 14, 2012, alleging thatthe father had violated the terms of the stipulation of settlement and seeking itsenforcement. The Family Court granted the mother's petition and issued orders directingthe entry of money judgments in favor of her and against the father in the sums of$45,000 for child support arrears and $7,500 for maintenance arrears. The Family Courtsubsequently denied the father's objections with respect to his obligation to pay $45,000for child support arrears and granted his objection with respect to his obligation to paymaintenance arrears only to the extent of reducing his payment to $7,200 for sucharrears.
The father contends that the mother waived her right to receive child support andmaintenance upon her voluntary and intentional decision not to cash the checks that hesent to her during the period from April 2008 through September 2009. He argues that, atthe time that he sent the checks, there were sufficient funds to cover them. However,after the mother failed to cash approximately 8 to 12 checks, the father allegedly used thefunds in the account.
A valid waiver " 'requires no more than the voluntary and intentional abandonmentof a known right which, but for the waiver would have been enforceable' " (Golfo v Kycia Assoc., Inc., 45AD3d 531, 532 [2007], quoting Nassau Trust Co. v Montrose Concrete Prods.Corp., 56 NY2d 175, 184 [1982]; see Gresser v Princi, 128 AD2d 752, 753[1987]). It may arise by either an express agreement or by such conduct or failure to actas to evince an intent not to claim the purported advantage (see Hadden vConsolidated Edison Co. of N.Y., 45 NY2d 466, 469 [1978]; Cashin v Cashin, 79 AD3d963 [2010]; Cotton vCotton, 76 AD3d 1041 [2010]). A waiver "is not created by negligence,oversight, or thoughtlessness, and cannot be inferred from mere silence" (Peck vPeck, 232 AD2d 540, 540 [1996]). Rather, there must be proof that there was avoluntary and intentional relinquishment of a known and otherwise enforceable right(see id.). " '[T]he party claiming a waiver must come forward with evidence of avoluntary and intentional relinquishment of a known and otherwise enforceable right tochild support' " (Matter ofTafuro v Tafuro, 102 AD3d 877, 878 [2013], quoting Stevens v Stevens, 82 AD3d873, 873 [2011]; see Matterof Barrio v Montanez, 71 AD3d 1140, 1140 [2010]; Matter of O'Connor vCurcio, 281 AD2d 100, 105 [2001]).
The father failed to prove that the mother's decision not to cash the child support andmaintenance checks constituted a voluntary and intentional relinquishment of her right tothose payments. The father does not dispute that the mother's decision not to cash thechecks was based upon the advice of her counsel in the plenary action (see Cotton v Cotton, 76 AD3d1041 [2010]; Weissman vWeissman, 42 AD3d 448 [2007]) so as to preserve and support her claim thatshe was entitled to an increase in child support and maintenance payments. The fatherdid not come forward with any evidence showing that the mother intended to abandonher rights to child support and maintenance payments. In fact, she was seeking anincrease in such payments.
Upon the dismissal of the mother's plenary action, the terms of the parties' stipulationof settlement remained unchanged, intact, and enforceable. A stipulation of settlementwhich is [*3]incorporated but not merged into a judgmentof divorce is a contract subject to principles of contract construction and interpretation(see Ackermann vAckermann, 82 AD3d 1020, 1020 [2011] [internal quotation marks andcitations omitted]). The terms thereof operate as contractual obligations binding on theparties (see id.). Since the father failed to prove an express or implied waiver bythe mother of her right to the child support and maintenance payments from April 2008through September 2009, he remains bound by the contractual obligations in thestipulation of settlement.
The father's remaining contentions are without merit.
Accordingly, the Family Court properly determined that the father owes the motherchild support arrears in the sum of $45,000 and maintenance arrears in the sum of $7,200in accordance with the terms of the stipulation of settlement. Mastro, J.P., Chambers,Lott and Miller, JJ., concur.
Motion by the father on appeals from three orders of the Family Court, SuffolkCounty, dated October 18, 2012, October 19, 2012, and December 13, 2012,respectively, and two amended orders, both entered December 26, 2012, to strike fromthe record the mother's memorandum of law dated September 27, 2012, and the exhibitsattached thereto, and the mother's rebuttal to respondent's objections dated November 29,2012, and the exhibits attached thereto, on the ground that they contain matter dehors therecord. By decision and order on motion of this Court dated June 19, 2013, the motionwas held in abeyance and referred to the panel of Justices hearing the appeals fordetermination upon the argument or submission thereof.
Upon papers filed in support of the motion and the papers filed in opposition thereto,and upon the submission of the appeals, it is
Ordered that the motion is denied. Mastro, J.P., Chambers, Lott and Miller, JJ.,concur.
Motion by the father on appeals from three orders of the Family Court, SuffolkCounty, dated October 18, 2012, October 19, 2012, and December 13, 2012,respectively, and two amended orders, both entered December 26, 2012, inter alia, tostrike stated portions of the mother's appellate brief on the ground that they refer tomatter dehors the record, or, in the alternative, to take judicial notice of an order of theSupreme Court, Suffolk County, dated May 4, 2012, in an action entitled Hinck vHinck, pending under index No. 42441/08. By decision and order on motion of thisCourt dated August 28, 2013, that branch of the motion which was to strike statedportions of the mother's appellate brief on the ground that they refer to matter dehors therecord or, in the alternative, to take judicial notice of an order of the Supreme Court,Suffolk County, dated May 4, 2012, in an action entitled Hinck v Hinck, pendingunder index No. 42441/08, was held in abeyance and referred to the panel of Justiceshearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeals, it is,
Ordered that the branch of the father's motion which was to strike stated portions ofthe mother's appellate brief on the ground that they refer to matter dehors the record or,in the alternative, to take judicial notice of an order of the Supreme Court, SuffolkCounty, dated May 4, 2012, in an action entitled Hinck v Hinck, pending underindex No. 42441/08, is denied. Mastro, J.P., Chambers, Lott and Miller, JJ., concur.