POST - DIVORCE: DEFAULT CURED ONLY AFTER MOTION MADE REQUIRED PAYMENT OF EXPENSES AS PER AGREEMENT

A contract is a contract.

Tara W. v. Yitzchok W., NYLJ February 24, 2020,  Date filed: 2020-02-18, Court: Supreme Court, Kings, Judge: Justice Delores Thomas:

"As to that branch of plaintiff’s motion which seeks an order directing defendant to pay her $2,500 which she paid to Mr. Berfas in connection with preparing the instant motion, it is well established that “[w]here the parties have agreed to provisions in a settlement agreement that govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” (Roth v. Roth, 116 AD3d 833, 834 [2d Dept 2014]; see also Fenster v. Fenster, 107 AD3d 933, 933 [2d Dept 2013]; Sweeney v. Sweeney, 71 AD3d 989, 992 [2d Dept 2010]; Rubio v. Rubio, 70 AD3d 805, 806 [2d Dept 2010]; Matter of Berns v. Halberstam, 46 AD3d 808, 809 [2d Dept 2007]; Arato v. Arato, 15 AD3d 511, 512 [2d Dept 2005]). Here, article 15 of the settlement agreement expressly obligated a party who defaulted with respect to any obligation set forth therein to pay the other party his or her reasonable attorney’s fees and related expenses and costs incurred in commencing and maintaining an action or proceeding to enforce such obligation.

It has been established that defendant defaulted with respect to: (1) his obligation under article 35 of the settlement agreement to execute the deed to the marital residence and all ancillary recording documents; (2) his obligation under article 36 of the settlement agreement to pay $3,000 to plaintiff as his share of the water bills; and (3) his obligation under article 29 of the settlement agreement to provide proof that he maintained a life insurance policy of $1,000,000 to secure his support obligations. It was only after plaintiff filed her motion that defendant agreed to cure these defaults by him. Thus, pursuant to article 15 of the settlement agreement, defendant, as the defaulting party, was contractually obligated to pay plaintiff such reasonable attorney’s fees and related expenses or costs incurred by plaintiff in bringing this motion to enforce these articles of the settlement agreement (see Fackelman v. Fackelman, 71 AD3d 724, 726 [2d Dept 2010]; Leiderman v. Leiderman, 50 AD3d 644, 644-645 [2d Dept 2008]; Sieratzki v. Sieratzki, 8 AD3d 552, 554 [2d Dept 2004]).

While plaintiff gave defendant written notice of his default by email, rather than by certified mail, return receipt requested, or by overnight delivery service to defendant, as set forth in article 15 of the settlement agreement, plaintiff’s failure to strictly comply with this notice requirement is not fatal to plaintiff’s request for attorney’s fees and related expenses or costs because defendant does not dispute that he received actual notice of his defaults, and he was not, in any way, prejudiced as a result of this minimal deviation (see Suarez v. Ingalls, 282 AD2d 599, 600 [2d Dept 2001]). Rather, defendant had actual notice of plaintiff’s numerous requests for compliance with the terms of the settlement agreement, but he refused these requests, necessitating plaintiff’s filing of this motion (see id.; Dellicarri v. Hirschfeld, 210 AD2d 584, 585 [3d Dept 1994]; Heischober v. Heischober, 53 Misc 3d 146[A], 2016 NY Slip Op 51600[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).
Defendant argues that plaintiff is not entitled to attorney’s fees because she did not provide a statement of net worth or an affidavit detailing her financial ability to pay such fees. Such argument is rejected since plaintiff’s request for fees is based on article 15 of the settlement agreement, rather than Domestic Relations Law §237 (see Garcia v. Garcia, 104 AD3d 806, 807 [2d Dept 2013]; Matter of Milark v. Meigher, 56 AD3d 1018, 1021 [3d Dept 2008]). Defendant also argues that plaintiff did not provide a cancelled check or a paid receipt for funds allegedly expended. Plaintiff, however, as noted above, provided the retainer agreement and Mr. Berfas’ affirmation, showing the amount paid by her.

In addition, it is noted that plaintiff does not characterize her request as seeking attorney’s fees, and states that she retained Mr. Berfas’ law firm and its associates as “consultants” to prepare her instant order to show cause based on defendant’s failure to adhere to the settlement agreement. Plaintiff refers to Mr. Berfas’ fees as being for “legal consulting and document preparation” and as “consulting fees,” and states that she is representing herself pro se. However, article 15 of the settlement agreement broadly encompasses “reasonable attorney’s fees and related expenses or costs” in connection with enforcing the settlement agreement. The court finds that the $2,500 sought by plaintiff falls within the ambit of this article. Plaintiff incurred these fees due to defendant’s refusal to comply with the settlement agreement and the need for court intervention before obtaining his cooperation. Defendant did not agree to sign the deed or pay the $3,000 until after this motion was brought.

Defendant asserts that “one might ask how it is reasonable to expend $2500.00 [to Mr. Berfas] to recoup $3,000.” Plaintiff, however, was not merely seeking $3,000, but also for defendant to sign the deed transferring the marital residence, which defendant had refused to do for approximately one year. Defendant did not request a hearing on the issue of the reasonableness of the amount of the fees to be awarded, and did not object to the resolution of the issue based on written submissions. Thus, defendant waived the right to a hearing on this issue (see Rosner v. Rosner, 143 AD3d 884, 885 [2d Dept 2016]). Consequently, under the circumstances of this case, where plaintiff was compelled to bring a motion to enforce the terms of the settlement agreement, the court finds that pursuant to article 15 of the settlement agreement, defendant must be required to pay plaintiff the reasonable amount of $2,500 as expenses incurred by her in enforcing defendant’s obligations under the settlement agreement (see Mollah, 136 AD3d at 994; Martin v. Martin, 92 AD3d 646, 646 [2d Dept 2012])."