| O'Brien v O'Brien |
| 2014 NY Slip Op 01590 [115 AD3d 720] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Richard O'Brien, Appellant, v Eileen O'Brien,Respondent. |
—[*1] Borchert, Genovesi & LaSpina, P.C., Whitestone, N.Y. (Anthony J. Genovesi, Jr., ofcounsel), for respondent.
In a matrimonial action in which the parties were divorced by a judgment enteredMarch 19, 1992, the plaintiff appeals (1) from an order of the Supreme Court, KingsCounty (Prus, J.), dated September 27, 2011, which denied those branches of his motionwhich were, in effect, for leave to reargue those branches of his prior motion which wereto hold the defendant in civil contempt, to direct the defendant to pay him one half of thevalue of certain stocks sold by the defendant, and for an award of counsel fees, whichhad been denied in an order of the same court (Platt, J.H.O.) dated February 9, 2011, anddenied those branches of his motion which were, in effect, for leave to reargue hisopposition to those branches of the defendant's prior cross motion which were to directhim to compensate the defendant for the value of her interest in certain real propertylocated in Utah, to reimburse her for 50% of the costs of certain repairs andimprovements to the former marital residence, and for an award of child support arrears,which had been granted in the order dated February 9, 2011, (2) an order of the samecourt (Prus, J.) dated November 14, 2011, which denied that branch of the plaintiff'smotion which was pursuant to CPLR 4403 to reject the report of the Judicial HearingOfficer (Platt, J.H.O.) finding that the defendant was entitled to an award of counsel fees,and thereupon confirmed the report, and (3), as limited by his brief, from so much of amoney judgment of the same court (Prus, J.) dated February 3, 2012, as, upon the ordersdated February 9, 2011, and November 14, 2011, directed him to pay to the defendant thesum of $17,016.61, plus interest, to reimburse her for 50% of the costs of repairs andimprovements to the former marital residence, awarded the defendant arrears for childsupport in the principal sum of $25,740, plus statutory interest, awarded the defendantthe sum of $24,229.95 for unspecified obligations relating to child support, awarded thedefendant "other child support" in the principal sum of $13,899.60, plus statutoryinterest, awarded the defendant $35,000, plus statutory interest, for her interest in theUtah property, awarded the defendant counsel fees in the principal sum of $17,500, plusstatutory interest.
Ordered that the appeals from the orders dated September 27, 2011, and November14, 2011, are dismissed, without costs or disbursements; and it is further,
Ordered that the money judgment is modified, on the law and the facts, (1) by [*2]deleting the provision thereof directing the plaintiff to payto the defendant the sum of $17,016.61, plus interest, to reimburse her for 50% of thecosts of repairs and improvements to the former marital residence, and substitutingtherefor a provision directing the plaintiff to pay to the defendant the sum of $16,653.61,plus statutory interest, to reimburse her for 50% of the costs and repairs to the formermarital residence, (2) by deleting the provision thereof awarding the defendant arrears forchild support in the sum of $25,740, plus statutory interest, and substituting therefor aprovision awarding the defendant arrears for child support in the sum of $23,740, plusstatutory interest, (3) by deleting the provision thereof awarding the defendant the sum of$24,229.95 for unspecified obligations relating to child support, (4) by deleting theprovision thereof awarding the defendant "other child support" in the sum of $13,899.60,plus statutory interest, and (5) by adding a provision thereto directing the defendant topay to the plaintiff the sum of $10,613.29, representing 50% of the value of certainstocks sold by the defendant; as so modified, the money judgment is affirmed insofar asappealed from, without costs or disbursements, that branch of the defendant's crossmotion which was to direct the plaintiff to reimburse the defendant for 50% of the costsof repairs and improvements to the former marital residence is granted to the extent thatthe plaintiff is directed to pay to the defendant the sum of $16,653.61, plus statutoryinterest, and is otherwise denied, that branch of the defendant's cross motion which wasfor an award of child support arrears is granted to the extent that the defendant isawarded child support arrears in the sum of $23,740, plus statutory interest, and isotherwise denied, and that branch of the plaintiff's motion which was to direct thedefendant to pay him one half of the value of certain stock sold by the defendant isgranted to the extent that the defendant is directed to pay to the plaintiff the sum$10,613.29, and is otherwise denied, the order dated February 9, 2011, is modifiedaccordingly, and the matter is remitted to the Supreme Court, Kings County, for thecalculation of the interest due in accordance herewith and the entry of an appropriateamended judgment thereafter.
The appeal from the order dated September 27, 2011, must be dismissed, as noappeal lies from an order denying leave to reargue (see Indymac Bank, F.S.B. v Moise, 107 AD3d 851, 852[2013]; Neunteufel v NelnetLoan Servs., Inc., 104 AD3d 657 [2013]). Moreover, the appeal from the orderdated November 14, 2011, must be dismissed as superseded by the money judgment.
On November 21, 1991, the parties entered into a so-ordered stipulation of settlement(hereinafter the stipulation) in open court, which survived and did not merge into ajudgment of divorce entered on March 19, 1992, or a related order dated March 20,1992. The stipulation provided, among other things, that "the marital premises will besold when [the parties' son] Michael finishes his four-year college education." Further,the parties agreed that "the stocks, bonds or other securities shall be split 50/50 between[them]," and that the plaintiff would pay child support for Michael in the sum of $165per week. It was additionally stated on the record during the settlement proceeding thatthe defendant "would get credit for the cost of major repairs and improvements" to themarital residence, and that the plaintiff would reimburse her semi-annually for 50% ofher mortgage payments on the marital residence.
Shortly after Michael's graduation from college in May 2006, the plaintiff moved tohold the defendant in civil contempt for failing to place the marital residence on themarket and for failing to divide the jointly owned securities. The plaintiff also asked theSupreme Court, inter alia, to award him counsel fees, and to direct the defendant to payhim one half of the value of certain stocks sold by the defendant. Subsequently, thedefendant cross-moved, inter alia, for reimbursement of the costs she incurred forimprovements and repairs to the former marital residence and an award of child supportarrears, and the matter was referred to a judicial hearing officer (hereinafter the JHO) tohear and determine the plaintiff's motion and the defendant's cross motion. In an orderdated February 9, 2011, made after a hearing, the JHO, among other things, denied theplaintiff's motion and granted those branches of the defendant's cross motion which wereto reimburse her for 50% of the costs she incurred for certain repairs and improvementsto the former marital residence, and for an award of child support arrears. In addition, theJHO found that the defendant was entitled to an award of counsel fees.
Following the JHO's decision, the plaintiff moved pursuant to CPLR 4403 to rejectthe JHO's report finding that the defendant was entitled to an award of counsel fees,arguing that the [*3]award was beyond the authoritygranted to the JHO in the order of reference. The plaintiff simultaneously moved, ineffect, for leave to reargue both his prior motion and his opposition to the defendant'sprior cross motion. In an order dated September 27, 2011, the Supreme Court deniedthose branches of the plaintiff's motion which were for leave to reargue. In an orderdated November 14, 2011, the Supreme Court, upon determining that the JHO was, ineffect, authorized to hear and report on the issue of counsel fees, denied that branch ofthe plaintiff's motion which was pursuant to CPLR 4403 to reject the JHO's report, andthereupon confirmed the JHO's report finding that the defendant was entitled to an awardof counsel fees. The Supreme Court subsequently entered a money judgment upon theorders dated February 9, 2011, and November 14, 2011.
A stipulation of settlement "is a contract subject to [the] principles of contractinterpretation, and a court should interpret the contract in accordance with its plain andordinary meaning" (Matter ofFilosa v Donnelly, 94 AD3d 760, 760 [2012] [internal quotation marksomitted]; see Dimond vDimond, 105 AD3d 891, 891-892 [2013]; Herzfeld v Herzfeld, 50 AD3d 851, 851 [2008]). "[W]heninterpreting a contract, the court should arrive at a construction which will give fairmeaning to all of the language employed by the parties to reach a practical interpretationof the expressions of the parties so that their reasonable expectations will be realized" (Hepburn v Hepburn, 78 AD3d1001, 1002 [2010] [internal quotation marks omitted]; see Herzfeld vHerzfeld, 50 AD3d at 851). "A court should not, under the guise of contractinterpretation, imply a term which the parties themselves failed to insert or otherwiserewrite the contract" (Penavic vPenavic, 88 AD3d 671, 672 [2011]; see Matter of Korosh v Korosh, 99 AD3d 909, 911[2012]; Herr v Herr, 5AD3d 550, 552 [2004]).
Contrary to the plaintiff's contention, the Supreme Court did not improvidentlyexercise its discretion in denying that branch of his motion which was to hold thedefendant in contempt for failing to place the marital residence on the market, for failingto divide the jointly owned securities, and for selling certain shares of stock. To prevailon a motion to punish for civil contempt pursuant to Judiciary Law § 753, basedon a violation of a court order, the movant must "establish by clear and convincingevidence that a lawful court order clearly expressing an unequivocal mandate was ineffect, that the person alleged to have violated the order had actual knowledge of itsterms, and that the violation has defeated, impaired, impeded, or prejudiced the rights ofa party" (Manning vManning, 82 AD3d 1057, 1058 [2011]; see Judiciary Law § 753[A] [3]; McCain v Dinkins, 84 NY2d 216, 226 [1994]; Bernard-Cadet v Gobin, 94AD3d 1030, 1031 [2012]).
Here, the plaintiff failed to establish, by clear and convincing evidence, that thedefendant violated a clear and unequivocal mandate in the stipulation of settlement,thereby prejudicing the plaintiff's rights (see Reback v Reback, 73 AD3d 890, 891 [2010]; Palladino v Palladino, 89AD3d 814, 815 [2011]; Kutanovski v Kutanovski, 162 AD2d 662 [1990]).The stipulation contained no provision placing the responsibility for selling the maritalresidence or for dividing the securities solely on the defendant, and "neither partyexercised reasonable efforts to effectuate the sale of the marital residence" or the divisionof the securities (Kutanovski v Kutanovski, 162 AD2d at 663; see also Nimkoff v Nimkoff,39 AD3d 292, 292-293 [2007]). Additionally, the evidence relied upon by theparties in connection with submissions they made to the court in 2006 supported theSupreme Court's conclusion that the value of the stock sold by the defendant in 1994 and1996 did not exceed her 50% share of the securities held in the parties' two stockaccounts. Since the plaintiff failed to demonstrate that the defendant engaged incontemptuous conduct, or that the defendant willfully failed to comply with the terms ofthe stipulation, the plaintiff was not entitled to an award of counsel fees pursuant toJudiciary Law § 773 or Domestic Relations Law § 237 (c) (see Miller v Miller, 61 AD3d651, 652 [2009]; cf. Viderv Vider, 85 AD3d 906, 908 [2011]; Loria v Loria, 46 AD3d 768, 770 [2007]).
Moreover, the Supreme Court correctly concluded that the plaintiff's voluntarypayments to the defendant for the benefit of the parties' child Michael, which were notmade pursuant to a court order, may not be credited against the child support arrears duepursuant to the stipulation (see Horne v Horne, 22 NY2d 219, 224 [1968]; LiGreci v LiGreci, 87 AD3d722, 724 [2011]; Heiny vHeiny, 74 AD3d 1284, 1288 [2010]; Matter of Hang Kwok v Xiao Yan Zhang, 35 AD3d 467,468 [2006]). However, the Supreme Court, in the money judgment dated February 3,2012, should have credited the plaintiff for a payment in the sum of $2,000 made by himin June 2002. At the hearing before the JHO, the defendant did not contradict theplaintiff's testimony that this payment was for child [*4]support. Thus, the award of $25,740 for child supportarrears must be reduced by $2,000. Further, the plaintiff correctly contends that theSupreme Court, in the money judgment dated February 3, 2012, improperly awarded thedefendant the sum of $24,229.95 for unspecified obligations relating to child support and$13,899.60 "for other child support," as those awards were undisputedly neither soughtby the defendant nor supported by the record. Accordingly, those provisions must bedeleted from the money judgment.
The Supreme Court properly interpreted the parties' stipulation to require the plaintiffto reimburse the defendant for 50% of the costs of "major repairs and improvements" tothe former marital residence (see generally Hepburn v Hepburn, 78 AD3d 1001, 1002[2010]; Andersen vAndersen, 69 AD3d 773, 774 [2010]). However, construing the language inaccordance with its plain and ordinary meaning (see Matter of Filosa v Donnelly,94 AD3d at 760), the purchase of a mailbox for $47, the refinishing of a stained-woodfloor for $324, the cleaning of the home's chimneys for $205, and the replacement ofchimney caps for $150 did not qualify as major repairs or improvements, but merelyconstituted ordinary maintenance work (cf. Horne v Horne, 22 NY2d at 222).Accordingly, the defendant is not entitled to a reimbursement for 50% of those payments,and the award of $17,016.61 must be reduced by $363.
Moreover, the Supreme Court should have granted that branch of the plaintiff'smotion which was to direct the defendant to pay the plaintiff one half of the value ofcertain stocks sold by the defendant in 1994 and 1996. Pursuant to the stipulation, thesecurities in the parties' joint stock accounts were to "be split 50/50 between the parties."The defendant's testimony at the hearing and the documentary evidence submitted by theparties to the Supreme Court demonstrated that the defendant sold substantially all of theshares in one of the parties' stock accounts for the sum of $21,226.57, leaving sharesworth in excess of $20,000 in the parties' remaining account. Although the defendant'ssale of the stocks did not violate the stipulation, it involved all, or most, of the shares towhich she was entitled pursuant to the stipulation. In October 2007, the plaintifftransferred one half of the remaining shares out of the second account. In the absence ofcompensation to the plaintiff for one half of the value of the shares sold by the defendant,the defendant would be left with more than her 50% share of the securities in the parties'joint stock accounts, as she would retain the proceeds of the sale of her 50% share in the1990s, as well as one half of the remaining stocks. Accordingly, the plaintiff is entitled toan award in the sum of $10,613.29, representing 50% of the value of the stocks sold bythe defendant.
The plaintiff's remaining contentions either are without merit, are not properly beforethis Court, or need not be reached in light of our determination. Rivera, J.P., Leventhal,Roman and Cohen, JJ., concur.