NJL v. CAL, 2024 NY Slip Op 50140 - Nassau Co. Sup. Court 2024:
"This case presents a sad and unfortunate set of facts. The important fact
central to this application is not in dispute. The parties' underlying
matrimonial action was commenced on December 7, 2020. After
two-and-a-half years of litigation, which included twelve (12) motions,
family offense petitions, the issuance of order(s) of protection, and
the start of a trial, these parties resolved their matrimonial action.
During the trial, the parties resolved the issues of custody and
parenting time by a Stipulation which was spread on the Record in open
Court on March 28, 2023 (hereinafter referred to as the "Custody
Stipulation"),[1]
and the remaining issues were thereupon resolved by a Stipulation which
was also spread on the Record in open Court on March 29, 2023
(hereinafter referred to as the "Financial Stipulation").[2]
During the parties' trial, however, something unfortunate occurred.
These parties have three (3) children: C III, C A and CH A. The parties
daughter, CH A, threatened self-harm. She expressed her pain to her
parents, and told them that she did not wish to live because of the
fighting between her parents. The police arrived on-scene. An ambulance
was called. CH A spent the night at the hospital under evaluation. There
is, of course, a presumption that natural bonds of affection lead parents to act in the best interests of their children. Troxel v. Granville, 530 U.S. 57, 87 (2000) (Stevens, J., dissenting). The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. Tatel v. Mt. Lebanon Sch. Dist., 637 F. Supp. 3d 295 (D. Penn. 2022).
A parent's love for a child can be described as a cohesive bond which
serves to anchor the material, financial and emotional support that are
vital to the well-being of that child. M.H.B. v. H.T.B., 100 N.J. 567 (Supreme Court of New Jersey 1985). There can be no doubt that CH A's threat of self-harm took an emotional toll on these parties.
Now, months later, the Defendant seeks to set aside the Custody
Stipulation and the Financial Stipulation, based upon duress and, in
effect, unconscionability. The principal issue of this application is a
sensitive one, and it is whether or not a child's threat of self-harm
and her subsequent hospitalization for that threat constitutes duress
and is a sufficient basis to vitiate two (2) Stipulations (see supra)
on that basis. This Court finds, for the reasons that follow in this
Decision and Order, that the child's threat of self-harm and subsequent
hospitalization for same does not constitute duress.
PRELIMINARY STATEMENT
The Defendant moves by Order to Show Cause dated October 25, 2023
(Motion Sequence No.: 016), seeking an Order: (1) Vacating the terms and
provisions of the Stipulation of Settlement dictated in open court on
March 28, 2023 and the Stipulation of Settlement dictated in open court
on March 29, 2023 on the grounds that the terms and provisions of said
Stipulations were both the product of duress and are manifestly unfair;
(2) Staying the within proceedings including but not limited to the
entry of a proposed Judgment of Divorce pending determination of the
within motion; (3) Granting defendant, C.A.L., II, full residential
custody of the child, CH A, born XX XX, 2012; (4) Granting defendant
such other and further relief as to this Court may seem just, proper and
equitable.
The Plaintiff cross-moves by Notice of Cross-Motion dated January 10,
2024 (Motion Sequence No.: 108) seeking an Order: (1) Sanctioning
Defendant pursuant to Pursuant to [sic] 22 NYCRR 130-1.1 by granting
Krauss Shaknes Tallentire & Messeri LLP the reasonable costs and
attorney's fees incurred by Plaintiff in opposing Defendant's frivolous
Order to Show Cause; and (2) Directing such other and further relief as
the Court deem just and proper.
The Plaintiff moves by Order to Show Cause for Contempt dated
December 20, 2023 (Motion Sequence No.: 017) seeking an Order: (a)
Pursuant to Judiciary Law 750(A)(3) and 753(A)(3), adjudging Defendant,
C.A.L., II ("Defendant"), to be in criminal and civil contempt of court
for failure to pay the school tuition for the parties three Children in
violations [sic] of the so-Order Stipulations of Settlement dated March
28, 2023 ("March 28th Stipulation" Exhibit B) May 29, 2023 (March 29th
[sic] Stipulation Exhibit C); (b) Pursuant to Judiciary Law 750(A)(3)
and 753(A)(3), adjudging Defendant, C.A.L., II ("Defendant"), to be in
criminal and civil contempt of court for failure to pay child support
based on his refusal to reimburse the Plaintiff for his share of the
Children's add on expenses in violations [sic] of the March 28th
Stipulation and March 29th Stipulation; (c) Directing Defendant to
immediately pay of [sic] the sum of $13,691.44 to the Rectory School for
his share of CH A's tuition through the end of the 2023-2024 school
year, $8,874 to Hebron Academy for his share of C A's tuition through
the end of the 2023-2024 school year, and $9,422.67 to the Hyde School
for his share of C III's tuition through the end of the 2023-2024 school
year; (d) Directing Defendant to immediately reimburse Plaintiff the
amount of $4,140 for his share of the Children's tutoring expenses,
$4,325 for his share of the children's 2023 summer camp costs, $2,619.73
for his share of the Children's extracurricular activity expenses, and
$5,012.56 for his share of the Children's unreimbursed medical expenses;
(e) Pursuant to Domestic Relations Law 237(b) and 238 and/or Judiciary
Law 773 awarding Plaintiff the sum of $20,000 in counsel fees for the
costs and fees incurred as a result of having to bring this application
due to Defendant's failure to comply with this Court's orders; and (f)
For such other and further relief as the Court may deem necessary.
BACKGROUND
These parties were married on August 17, 2007. There are three (3)
children of this marriage: C III, born XX XX, 2008, C A, born XX XX,
2010 and CH A, born XX XX, 2012. The parties' matrimonial action was
commenced on December 7, 2020 by the filing of a Summons with Notice and
Verified Complaint with the Nassau County Clerk's Office. During the
underlying matrimonial action, the Plaintiff was represented by the firm
of Krauss Shaknes Tallentire & Messeri, LLP. The Defendant was
represented by The Maiaklovsky Law Firm, PLLC. By Order Appointing
Attorney for the Children dated January 21, 2021, this Court appointed
Brynde Berkowitz, Esq. (hereinafter referred to as the "AFC"), to
represent the subject children.
The parties' underlying matrimonial action proceeded to trial. The
parties settled this matter during trial, and spread on the record in
open Court the Custody Stipulation on March 28, 2023 and the Financial
Stipulation on March 29, 2023.[3]
On March 29, 2023, this Court issued an Order Directing Submission of
Findings of Fact, Conclusions of Law, and Judgment of Divorce
(hereinafter referred to as the "Judgment Submission Order"). The
contested-settled judgment packet was submitted to the Clerk's Office
through NYSCEF on June 29, 2023. To date, the proposed Judgment of
Divorce remains unsigned.
On September 11, 2023, the Defendant executed a Consent to Change
Attorney form, substituting Eugene W. Bechtle, Jr. Esq., in place and
stead of the Maiaklovsky Law Firm, PLLC. On the presentment date of the
Defendant's Order to Show Cause, this Court denied the proposed
preliminary relief sought by the Defendant which was for a stay of all
proceedings including a stay of entry of the proposed Judgment of
Divorce.
On the presentment date of the Plaintiff's Order to Show Cause for Contempt, the Court (Hon. Stacy D. Bennett, J.S.C.),[4] granted the following interim relief:
ORDERED, that, pending determination of this motion, within
48 hours, Defendant shall pay the sums of $9,800.00 to the Rectory
School for his share of CH A's tuition through the end of the 2023-2024
school year, $6,655.00 to Hebron Academy for his share of C A's tuition
through the end of the 2023-2024 school year, and $2,770.00 for the Hyde
School for his share of C III's tuition through the end of the
2023-2024 school year.
THE PARTIES' CONTENTIONS
Defendant's Contentions (Motion Sequence No.: 016):
The Defendant argues that the impetus for his participation and
verbal consent to the Stipulation(s) was extreme duress and that the
terms of both of the aforesaid are manifestly unfair. He argues that the
Plaintiff has accused him of abusing the children and that his
interaction with the children was interfered with by the Plaintiff. He
argues that the Plaintiff has made five (5) complaints to CPS, all of
which were determined to be unfounded.[5]
He argues that during the matrimonial action, there was extreme anxiety
imposed upon the children, and that the Plaintiff employed one of the
parties' sons to falsely accuse him of abuse. He argues that CH A is
"daddy's little girl" who suffered the most during the divorce as she is
the most "vulnerable". He argues that his counsel during the divorce
case was too "passive" in representing his interests, but he concedes
that he was "becoming desperate to resolve this case". He argues that in
March, 2023, CH A's health was seriously declining and that she would
cry to him to bring an end to the divorce case. He sets forth that on
March 27, 2023, CH A threatened suicide and that because of this, in
effect, he had to get the case "over", as he needed to bring peace and
stability to CH A's life. He therefore argues that, in light of this and
in effect, he "went along with whatever was dictated on the Record the
next day and the day after" and that he was only "half listening". He
argues that, on October 9, 2023, CH A called him from her boarding
school and told him that she was so upset that she was going to commit
suicide and that she had cut herself. He argues that he should have
never consented to give-up custody of CH A. He sets forth that his gross
salary is $128,892.64, but his monthly expenses are $27,908, including
sharing the cost of boarding school for all three children, his share of
which totals $31,266.00. He argues that he also has to share the cost
of summer camp, with his share totaling $4,325.00.
Plaintiff's Contentions (Motion Sequence No: 017):
The Plaintiff argues that when she commenced the underlying
matrimonial action, the Defendant consistently failed to pay child
support and he refused to pay the children's add-on expenses. She argues
that the children have been attending private independent schools since
before the divorce action and, in effect, the Defendant changed his
position about private school when the divorce action was commenced. She
argues that the Defendant has failed to pay his portion of the
children's tuition and failed to reimburse her for over $20,000 in
add-on expenses. She argues that she sought the Defendant's payment of
the children's tuition, but the children's schools are threatening to
expel them for the Spring 2024 semester. She argues that the Defendant
is in arrears $31,988.11 for school tuition, $495 for school application
fees, $4,140 for tutoring expenses, $4,325 for summer camp expenses,
$2,619.73 for extracurricular activity expenses, and $5,012.56 for
medical co-payment expenses.
Affirmation of Attorney for the Children (Motion Sequence Nos.: 016 & 017):
The AFC sets forth that she contacted two of the children's schools
in December, 2023, and confirmed that the Defendant had not paid his
share of tuition. The AFC sets forth that she met with the children on
December 27, 2023, and the children advised her that each of them are
"thriving" at their current boarding schools and that they each would
like to remain there. The AFC sets forth that each school, however,
advised her that the children would not be allowed back after the
Christmas holiday unless each school received the tuition due. The AFC
reiterates that the children each wish to continue attending their
respective schools and that it is in the best interests of the children
that the Defendant pay his share of the tuition that is due. The AFC
sets forth that the parties were engaged in an acrimonious litigation
during the underlying divorce and waged war against each other and
sought police intervention in front of the children. The AFC sets forth
that the underlying divorce was resolved in the best interests of the
children. The AFC sets forth that the Plaintiff filed a Family Offense
Petition was settled on consent with no admission and a final Order of
Protection.[6] The AFC sets forth that C III wants everything to remain as status quo
and that he does not wish to have contact with the Defendant, that C A
would like to speak with the Defendant on the phone, and that CH A
wishes to maintain the status quo. She sets forth that CH A,
while she was previously unhappy at her Boarding School (which included
an incident of self-harm), she has adjusted and is happy now and that
when CH A is home from Boarding School, she wishes to continue to live
with the Plaintiff and visit with the Defendant, as she enjoys the
current schedule. The AFC sets forth that CH A has, in the past,
witnessed the Defendant engage in "extreme" corporal punishment" by the
Defendant upon her brothers.
Plaintiff's Contentions & Opposition (Motion Sequence Nos.: 016 & 018):
The Plaintiff reiterates that the Defendant is in arrears with
respect to many of his court-ordered obligations. She argues that she
accepted less than the statutorily amount for child support and less
than her equitable share of the Defendant's pension at Vanguard. She
argues that the Defendant agreed to equally cover the costs of private
schooling and the Defendant knew that the only educational options were
private boarding schools. She argues that the Defendant continues to
allocate funds for litigation instead of complying with the
Stipulation(s). She argues that there has been no change in
circumstances as it relates to CH A and that it is in the best interests
of CH A to remain in her care. She argues that the Defendant has a
short temper and that this resulted in the two boys refusing visitation
with him. She argues that the Defendant physically assaulted C A. She
argues that C A recorded the Defendant threatening and abusing C A and
making comments about his sexuality, and that CH A was present during
this "episode".
Defendant's Opposition, Opposition & Reply (Motion Sequence Nos.: 016, 017 & 018):
The Defendant argues that the TRO's issued by Justice Bennett have
been satisfied as he put together the $19,280.33 ordered by borrowing
the maximum from his 401(k), borrowing from a friend, and his year-end
bonus. He argues that three lawyers (the Plaintiff, the Plaintiff's
counsel and the AFC) out-maneuvered and "bulldozed" his lawyer who was
"not capable of standing up for me". He argues that the Stipulation(s)
are one-sided. He argues that he is unable to comply with the
Stipulation(s), as he has $27,908.00 in monthly expenses which leaves
him with a monthly deficit of $6,973.07. He avers that his monthly
income, after deductions, is $3,152.76. He argues that he cannot pay his
prior attorney and cannot pay his student loans. He argues that over
his objection, the Plaintiff placed the children in out-of-state
boarding schools, and he never consented to those placements. He argues
that he cannot be held in contempt for decisions made over his
objections and that the Plaintiff denigrates his role as the father of
the children. He argues that the AFC's contentions that the children are
enjoying their current schools is "besides the point" as the children
were manipulated during the divorce. He argues that the Stipulation(s)
are deficient in that it is unusual for the children to be shipped-off
to Boarding School and sleep-away camps, and that provisions for the
payment of private school prior to college are unusual. He argues that
"caps" should have been placed in the Stipulation(s).
DISCUSSION + ANALYSIS
VACATUR OF CUSTODY & FINANCIAL STIPULATION
Stipulations of settlement are favored by the courts and are not lightly set aside. Sabowitz v. Sabowitz, 123 AD3d 794 (2d Dept. 2014); see also Campione v. Alberti, 98 AD3d 706 (2d Dept. 2012).[7] Judicial review is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own. Doukas v. Doukas, 47 AD3d 753 (2d Dept. 2008); see also Brennan-Duffy v. Duffy, 22 AD3d 699 (2d Dept. 2005); see also Kojovic v. Goldman, 35 AD3d 65 (1st Dept. 2006)
(a stipulation of settlement in a divorce action, competently entered
into, is entitled to the recognition accorded any other contract, and
judicial review is to be exercised circumspectly, sparingly and with a
persisting view to the encouragement of parties settling their own
differences in connection with the negotiation of property settlement
provisions). Courts have thrown their cloak of protection over
separation agreements and made it their business, when confronted, to
see to it that they are arrived at fairly and equitably, in a manner so
as to be free from the taint of fraud and duress, and to set aside or
refuse to enforce those born of and subsisting in inequity. Jon v. Jon, 123 AD3d 979 (2d Dept. 2014).
A separation agreement or stipulation of settlement which is fair on
its face will be enforced according to its terms unless there is proof
of fraud, duress, overreaching, or unconscionability. However, because
of the fiduciary relationship existing between spouses, a marital
agreement should be closely scrutinized and may be set aside upon a
showing that it is unconscionable or the result of fraud or where it is
shown to be manifestly unjust because of the other spouse's
overreaching. Eichholz v. Panzer-Eichholz, 188 AD3d 820 (2d Dept. 2020).
When there has been full disclosure between the parties, not only of
all relevant facts but also of their contextual significance, and there
has been an absence of inequitable conduct or other infirmity which
might vitiate the execution of the agreement, courts should not intrude
so as to redesign the bargain arrived at by the parties on the ground
that judicial wisdom in retrospect would view one or more of the
specific provisions as improvident or one-sided. Mizrahi v. Mizrahi, 171 AD3d 1161 (2d Dept. 2019). Indeed, there is a long-standing public policy in favor of settlements in divorce action. Keller-Goldman v. Goldman, 149 AD3d 422 (1st Dept. 2017) (Andrias, J., dissenting).
Duress
A contract is voidable on the ground of duress when it is established
that the party making the claim was forced to agree to it by means of a
wrongful threat precluding the exercise of his or her free will. Heinemann v. Heinemann, 189 AD3d 1553 (2d Dept. 2020); see also Shah v. Mitra, 171 AD3d 971 (2d Dept. 2019); see also Forman v. Forman, 211 AD3d 698 (2d Dept. 2022).
Generally, the aggrieved party must demonstrate that threats of an
unlawful act compelled his or her performance of an act which he or she
had the legal right to abstain from performing. Polito v. Polito, 121 AD2d 614 (2d Dept. 1986). The threat must be such as to deprive the party of the exercise of free will. Cavalli v. Cavalli, 226 AD2d 666 (2d Dept. 1996). In order to form an element of duress, the threat must be wrongful. Podmore v. Our Lady of Victory Infant Home, 82 AD2d 48 (4th Dept. 1981). A crucial element of duress is lack of free choice. Podmore, 82 AD2d at 51. A threat to do that which one has the legal right to do does not constitute duress (see Bachorik v. Allied Control Co., 34 AD2d 940 (1st Dept. 1970)), and generalized contentions that a party felt pressured are insufficient (see Desantis v. Ariens Co., 17 AD3d 311 (2d Dept. 2005)).
As a guidepost, and aside from established case-law, the Court looks
to secondary authority, such as the Restatement of Contracts. The
Restatement (Second) of Contracts § 175, entitled When Duress by Threat Makes a Contract Voidable, provides:
(1) If a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim.
(2) If a party's manifestation of assent is induced by one
who is not a party to the transaction, the contract is voidable by the
victim unless the other party to the transaction in good faith and
without reason to know of the duress either gives value or relies
materially on the transaction.
(emphasis added).
But what constitutes an improper threat? The Restatement (Second) of Contracts § 176, entitled When a Threat Is Improper, provides:
(1) A threat is improper if
(a) what is threatened is a crime or a tort, or the threat
itself would be a crime or a tort if it resulted in obtaining property,
(b) what is threatened is a criminal prosecution,
(c) what is threatened is the use of civil process and the threat is made in bad faith, or
(d) the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient.
(2) A threat is improper if the resulting exchange is not on fair terms, and
(a) the threatened act would harm the recipient and would not significantly benefit the party making the threat,
(b) the effectiveness of the threat in inducing the
manifestation of assent is significantly increased by prior unfair
dealing by the party making the threat, or
(c) what is threatened is otherwise a use of power for illegitimate ends.
The genesis of the Defendant of duress is that, in effect, he was
forced to agree to the terms of the Stipulation(s) because CH A
threatened self-harm. The Defendant's application founders. CH A's
threat of self-harm is not an improper threat made by the other party (see Restatement (Second) of Contracts § 175(1)). CH A, the parties' child, is not the other party.
In this vein, the Defendant has not established that his manifestation
of assent to enter into the Stipulation(s) was induced by a wrongful
threat made by the Plaintiff. In fact, the Defendant has not even alleged that the Plaintiff threatened him in a wrongful way so as to induce his assent to the Stipulation(s) (see
Restatement (Second) of Contracts § 175(1)). To this point, the
Defendant has not alleged that the Plaintiff threatened a crime or a
tort, nor has he alleged that the Plaintiff threatened the Defendant's
criminal prosecution if he did not consent to the Stipulation(s) (see
Restatement (Second) of Contracts § 176(1)(b)). Additionally, the
Defendant has not alleged that what was threatened and what forced him
to enter into the Stipulation(s) was the use of civil process in bad
faith (see Restatement (Second) of Contracts § 176(1)(c)), or that the Plaintiff breached the duty of good faith and fair dealing (see
Restatement (Second) of Contracts § 176(1)(d)). The Court does not find
that the Defendant's manifestation of assent to enter into the
Stipulation(s) was induced by one who is not a party to the transaction,
namely, CH A (see Restatement (Second) of Contracts § 175(2)) as the Defendant himself acknowledged on the Record, under oath, that he was entering into the Stipulation(s) freely and voluntarily.[8]
There is nothing in this Record that alleges and/or demonstrates that the Plaintiff engaged in an unlawful act
which compelled the Defendant's performance of an act that he had a
legal right to abstain from. Namely, the allegations of duress
propounded by the Defendant centers around CH A's mental state during
the parties' matrimonial action. But what the Defendant fails to do is
provide this Court with a sufficient nexus as to how CH A's
mental state effectively forced him and left him with no other choice
but to enter into the Stipulation(s). CH A's mental state did not
deprive the Defendant of his free will not to agree to the terms of the
Stipulation(s).
Additionally, the Court does not find that the Defendant was not without a reasonable alternative (see Restatement (Second) of Contracts § 175(1)), as the Defendant could have elected to continue
with the ongoing trial of the matrimonial matter, which the Court does
not find to be an unreasonable alternative. Moreover, the Court finds
that the Defendant had another alternative: seek or request an
adjournment of the underlying matrimonial trial in light of the child's
threat of self-harm. The Defendant, in fact, concedes that "...I never
should have consented to give up custody of CH A..." (see C.A.L., II, Affidavit ¶ 12), which the Court finds to be an acknowledgment that the Defendant had a reasonable alternative: to continue with the trial and pursue custody of CH A.
The Court has another consideration: the Stipulation(s) speak for
themselves. The relevant portions of the Custody Stipulation read:
THE COURT: Okay, thank you.
Ms. L's and Mr. L's, did you hear the stipulation read into the record?
MR. L: Yes.
MS. L: Yes, your Honor.
THE COURT: Did you both understand it?
MR. L: Yes.
MS. L: Yes, your Honor.
THE COURT: Do you both agree to be bound by the Stipulation that was read into the record?
MS. L: Yes, your Honor.
MR. L: Yes.
THE COURT: Are you both entering into this agreement freely and voluntarily?
MS. L: Yes, your Honor.
MR. L: Yes.
* * *
THE COURT: Do you understand that if you did not come
into this agreement on custody and parenting time you had the right to
continue the trial with regard to those matters?
MS. L: Yes, your Honor.
MR. L: Yes.
(see Custody Stipulation, pages 10-11) (emphasis added).
The relevant portions of the Financial Stipulation provide:
THE COURT: So Ms. L, Mr. L, the same questions as yesterday. Did you both hear the stipulation read into the record?
MS. L: Yes, your Honor.
MR. L: Yes.
THE COURT: Did you both understand it?
MR. L: Yes.
MS. L: Yes, your Honor.
THE COURT: Do you both agree to it?
MS. L: Yes, your Honor.
MR. L: Yes.
THE COURT: Are you both entering into this agreement freely and voluntarily?
MS. L: Yes, your Honor.
MR. L: Yes.
* * *
THE COURT: Do you understand that you had the right to proceed to trial—
MS. L: Yes, your Honor.
MR. L: Yes.
THE COURT: —over these issues?
MS. L: Yes, your Honor.
MR. L: Yes.
Here, both Stipulation(s) contain express acknowledgments — by the Defendant himself — that they were entered into freely and voluntarily. See generally Sabowitz v. Sabowitz, 123 AD3d 794 (2d Dept. 2014)
(party not entitled to set aside stipulation where, among other things,
stipulation contained an express representation that it was not a
product of fraud or duress); see also Schultz v. Schultz, 58 AD3d 616 (2d Dept. 2009)
(application for summary judgment seeking declaration that postnuptial
agreement is unenforceable denied where, among other things, agreement
itself recites that the party entered into it freely and voluntarily).
In the instant action, those express acknowledgments — in two separate stipulations
— deflate the Defendant's claim that the Stipulation(s) were the
product of duress and that he had no choice but to enter into those
agreements.[9]
Accordingly, and for all of the aforesaid reasons, it is hereby:
ORDERED, that so much of Branch (1) of the Defendant's Order to Show
Cause dated October 25, 2023 which seeks to set aside the Custody
Stipulation and the Financial Stipulation on the ground of duress be and
the same is hereby DENIED.
Manifestly Unfair/Unconscionability
The Defendant avers that both Stipulation(s) are "manifestly unfair",
which the Court understands to be arguments asserting
unconscionability. A party seeking to vacate a stipulation of settlement
has the burden of proof. See generally Johnson v. Ranger, 216 AD3d 925 (2d Dept. 2023).
A stipulation which is fair on its face will be enforced according to
its terms unless there is proof of fraud, duress, overreaching, or
unconscionability. Rubin v. Rubin, 33 AD3d. 983 (2d Dept. 2006); see also Lazar v. Lazar, 88 AD3d 852 (2d Dept. 2011).
A stipulation, however, will not be vacated simply because a party,
after the fact, believes that the agreement was improvident in some
respect or that it constituted a bad bargain (see Cohen v. Cohen, 170 AD3d 948 (2d Dept. 2023)), and a stipulation of settlement is not unconscionable simply because it might have been improvident or one-sided (see O'Hanlon v. O'Hanlon, 114 AD3d 915 (2d Dept. 2014)). The determination of unconscionability is a matter of law for the court to decide. See generally Industralease Automated & Scientific Equipment Corp. v. R.M.E. Enterprises, Inc., 58 AD2d 482 (2d Dept. 1977).
In determining the conscionability of a contract, no set weight is to
be given any one factor; each case must be decided on its own facts. David v. #1 Mktg. Serv., Inc., 113 AD3d 810 (2d Dept. 2014).
As the Court of Appeals has written:
It is well settled that an unconscionable contract is
generally defined as one which is so grossly unreasonable as to be
[unenforceable according to its literal terms] because of an absence of
meaningful choice on the part of one of the parties [procedural
unconscionability] together with contract terms which are unreasonably
favorable to the other party [substantive unconscionability].
Lawrence v. Miller, 11 NY3d 588 (2008); see also Cilento v. Cilento,
186 AD3d 556 (2d Dept. 2020 (in order to find a marital contract
unconscionable, two elements must be shown: procedural
unconscionability, which requires a lack of meaningful choice on the
part of one of the parties, and substantive unconscionability, which
requires contract terms which are unreasonably favorable to the other
party). An unconscionable bargain is one which no person in his or
her senses and not under delusion would make on the one hand, and no
honest and fair person would accept on the other, the inequality being
so strong and manifest as to shock the conscience and confound the
judgment of any person of common sense. Hughes v. Hughes, 131 AD3d 1207 (2d Dept. 2015). Procedural and substantive unconscionability operate on a sliding scale. Simar Holding Corp. v. GSC, 87 AD3d 688 (2d Dept. 2011).
In defining, in part, what makes a contract unconscionable, the Court of Appeals has opined:
[A]n unconscionable bargain has been regarded as one such as
no person in his or her senses and not under delusion would make on the
one hand, and as no honest and fair person would accept on the other,
the inequality being so strong and manifest as to shock the conscience
and confound the judgment of any person of common sense.
Christian v. Christian, 42 NY2d 63 (1977); see also Shah v. Mitra, 171 AD3d 971 (2d Dept. 2019).
A reviewing court examining a challenge to an agreement will view the
agreement in its entirety and under the totality of the circumstances. Mizrahi v. Mizrahi, 171 AD3d 1161 (2d Dept. 2019).
A. The Financial Stipulation
i. Procedural Unconscionability
The procedural element of unconscionability requires an examination of the contract formation process. Gillman v. Chase Manhattan Bank, 73 NY2d 1 (1988). Evidence of procedural unconscionability may include high-pressure tactics or a lack of meaningful choice. Green v. 119 W. 138th St. LLC, 142 AD3d 805 (1st Dept. 2016) (Tom, J., dissenting).
Such evidence may also include whether deceptive tactics were used and
whether or not there was a disparity in bargaining power. Gillman, 73 NY2d at 10. Additionally, the Court can consider an imbalance in the understanding and acumen of the parties. Emigrant Mtge. Co., Inc., v. Fitzpatrick, 95 AD3d 1169 (2d Dept. 2012).
While the Defendant claims that "... I found myself struggling to
survive in a process where 3 attorneys (my wife, my wife's attorney, and
the attorney for the children) essentially outmaneuvered and bulldozed
my attorney who was clearly not capable for standing up for me..." (see
C.A.L., II, Reply Affidavit ¶ 4), the Defendant fails to provide this
Court, other than that generalized and conclusory claim, any specifics
are to what "high pressure" tactics were employed.[10]
In fact, his principal moving Affidavit effectively contradicts that
nonspecific claim, wherein he admits that "... [t]he possibility that CH
A, at her age, would be in so much pain that she would contemplate
taking her own life was overwhelming to me and I felt that as a parent I
had absolutely no choice but to do whatever I could to bring
contentious litigation to an end and try to bring some peace and
stability to my younger daughter..." (see C.A.L., II, Affidavit ¶
9). In other words, the Defendant allegedly agreed to resolve the case
because of what was transpiring with CH A, not because of any specific
high pressure tactics employed by the Plaintiff. Moreover, the Court
does not find the absence of any meaningful choice; the Defendant could
have proceeded with the ongoing trial, sought an adjournment of the
trial in light of CH A's threat of self-harm, or attempted to negotiate
different terms of the Financial Stipulation.
The Defendant likewise does not allege that the Plaintiff engaged in
any deceptive tactics in order to induce him into agreeing to the terms
of the Financial Stipulation. The Court, on this Record, does not find a
disparity in the bargaining-power of the parties; the Court notes that
both parties were represented by counsel, and if the Defendant felt as
if his attorney was not effectively advocating for him or being
bulldozed, he could have done exactly what he did right before he filed
this motion: executed a consent to change attorney form and retained a
different attorney. There is likewise insufficient evidence that there
was an imbalance in the understanding and acumen of the parties, as both parties acknowledged, on the Record, that they understood the terms of the Financial Stipulation.
ii. Substantive Unconscionability
The substantive element of unconscionability requires, in sum and
substance, a showing that one or more of the key terms of the contract
that are unreasonably favorable to the other party. See generally Long Is. Minimally Invasive Surgery, P.C. v. Outsource Mktg. Solutions, Inc.,
33 Misc 3d 1228(A) (Supreme Court Nassau County 2011). Substantive
elements of unconscionability appear in the content of the contract per se. See generally Wells Fargo Bank, N.A. v. Weekes, 46 Misc 3d 1205(A) (Supreme Court Kings County 2014).
The Court has examined whether or not the terms of the Financial
Stipulation are unreasonably favorable to the Plaintiff by reading the
Financial Stipulation in toto. The Court does not find that they are. First, the Court notes that the presumptive amount of child support for the three (3) children is $2,132.95 per month (see Financial Stipulation, page 10), and the Plaintiff agreed to accept a downward deviation of the presumptive amount of child support in the amount of $1,700.00 per month (see
Financial Stipulation, pages 3-4), a more than $400.00 per month
reduction in said obligation. That inures to the benefit of the Defendant. Second,
the Court notes that the Financial Stipulation acknowledges that the
Plaintiff's adjusted gross income for CSSA purposes is $97,819.48 and
the Defendant's adjusted gross income for CSSA purposes is $115,514.48,
making the combined parental income to be $213,333.76 (see Financial Stipulation, pages 9-10), with the Plaintiff's pro rata share of the CPI being 46% and the Defendant's pro rata share of the CPI being 54% (see Financial Stipulation, page 10). The Court notes that the parties agreed that instead of allocating the add-one expenses of the children on a pro rata basis, the parties agreed to equally
share the cost of agreed-upon extracurricular activities, unreimbursed
medical, dental, orthodontia and optical expenses, and the educational
expenses, such as private school tuition, applications and tutoring,
notwithstanding that the Defendant has a greater share of the combined
parental income. That insures to the benefit of the Defendant.
Third, the Court notes that the Plaintiff waived her right to
reimbursement of add-on expenses of the children paid by her retroactive
to the date of commencement of the action, except for the costs of C
III's braces and the children's therapy expenses (see Financial Stipulation, page 5). That is a benefit to the Defendant. Fourth, the Court notes that the parties combined parental income is $213,333.76 (see supra), and the downward deviation agreed-to was calculated only on the first $163,000.00 of combined parental income (see
Financial Stipulation, page 9) and not the total combined parental
income in excess of the statutory cap, which would have made the
Defendant's basic child support obligation higher. That inures to the
benefit of the Defendant.
Fifth, the Court notes that the Financial Stipulation
provides, in sum and substance, that the Plaintiff would retain the
property located at XXXXX, Hempstead, New York and the Defendant would
retain the property located at YYYYY, Hempstead, New York (see
Financial Stipulation, page 11). In effect, the Court finds that the
parties agreed that each of them would retain one parcel of property.
The Court does not find this agreed-upon equitable distribution of real
property to be manifestly unfair or so as to shock the conscience of the
Court. Both parties, in effect, received an equal benefit of the
retention of one parcel of real estate. Sixth, the Court notes
that the parties agreed that the Plaintiff would only receive forty
(40%) percent (and not fifty (50%) percent or some other percentage over
forty (40%) percent) of the Defendant's 401(k) at Vanguard. That inures
to the benefit of the Defendant.
Seventh, the Court finds that the agreed-upon life insurance policy of $225,000 to secure his child support obligation (see
Financial Stipulation, page 14) to be in-line with the remaining amount
of his child support obligation until the emancipation of the youngest
child.[11] In fact, the $225,000.00 face amount of his life insurance policy sufficiently covers only
his basic child support obligation extrapolated over the remaining
years until the youngest child emancipates, and provides, in effect, no
financial security for the Defendant's fifty (50%) percent share of his
obligation to the add-on expenses of the children. That inures to the
benefit of the Defendant inasmuch as a policy with a higher face value may have increased the cost of the policy premium. Eighth, it appears that the parties agreed to each be responsible for 100% of the debt in his or her respective names (see
Financial Stipulation, page 15). Inasmuch as no detail was set forth in
the Financial Stipulation as to the amount of the debt each party was
retaining, the Court sees nothing improvident or manifestly unfair about
the allocation of the debt.
Ninth, it also appears that the parties agreed to remove their personal property from the other's residence (see
Financial Stipulation, page 15). Inasmuch as the parties did not
specifically allocate the actual personalty that each was retaining, or
the value thereof, the Court sees nothing manifestly unfair about that
agreement. Tenth, each party agreed to pay his or her own counsel fees (see
Financial Stipulation, page 16). The Court finds nothing manifestly
unfair about each party paying his or her own counsel fees in light of
the substantial comparability of the parties' respective incomes (see supra).
As a final point, the Defendant acknowledges that "... [m]y financial
circumstances are essentially what they were in March 2023..." (see
C.A.L., II, Affidavit ¶ 13). The Court has not found that any of the
provisions of the Financial Stipulation to be so one-sided or manifestly
unfair. The fact that there may not be any "caps" in the Financial
Stipulation with respect to certain add-on expenses, as argued by the
Defendant, is unpersuasive. Parties to a contract are basically free to
make whatever agreement they wish. See generally Deutsche Bank Natl. Trust Co. V. Flagstar Capital Mkts.,
32 NY3d 139 (2018). The Defendant has not provided this Court with any
statutory authority, established case-law, and/or any persuasive
authority that mandates a "cap" on educational expenses. The failure to
place a "cap" in the Financial Stipulation is not a violative of any
law, nor is it a transgression of public policy. Likewise, the fact that
the parties agreed to pay for private school (not college) is not a
basis to vitiate the Stipulation, especially since the Defendant does
not deny that the children were historically, even before the divorce,
attending private school. The Defendant's argument that the children
should be in public school instead of private school is not a basis to
vitiate the Financial Stipulation. In this respect, if the Defendant is
alleging that the Plaintiff violated the Custody Stipulation, then he
has remedies; but vitiation of the Financial Stipulation is not one of
them.
B. The Custody Stipulation
i. Procedural Unconscionability
The Court does not find any evidence of high-pressure tactics
employed by either the AFC or the Plaintiff. Both parties were
represented by independent counsel of their own choosing, and the
Defendant acknowledged, on the Record, that he was agreeing to the terms
of the Custody Stipulation "freely and voluntarily". Likewise, the
Court does not find that the Defendant had a lack of meaningful choice
before agreeing to the terms of the Custody Stipulation inasmuch as he
could have proceeded with the ongoing trial or sought an adjournment of
same in light of CH A's threat of self-harm. Or, alternatively, the
Defendant could have sought an adjournment of the trial.[12]
In other words, the Defendant was not forced by the Plaintiff to agree
to the terms of the Custody Stipulation, and he had other options; he
voluntarily chose not to exercise those other options. Furthermore,
there was no "disparity" in the bargaining power of the parties inasmuch
as both parties were represented by independent counsel of their own
choosing, and the Defendant himself acknowledged that he was satisfied
with the services of his counsel. Lastly, the Court does not find any
imbalance in the understanding and acumen of the parties, as the
Defendant expressly acknowledged, on the Record, that they understood
the terms of the Custody Stipulation.
ii. Substantive Unconscionability[13]
First, while the Custody Stipulation confers residential
custody of the children to the Plaintiff, it confers joint legal custody
upon the parties (see Custody Stipulation, page 3). The Court
does not find that one parent being designated as the residential parent
of the children to be a term that is manifestly unfair to one party. Second,
with respect to medical decision-making, in sum and substance, the
parties agreed that if there is a disagreement, the parties would follow
the recommendation of the child's pediatrician, but that either party
had a right to seek court intervention if they did not agree with the
decision (see Custody Stipulation, page 4). The Court does not find that provision to be manifestly unfair to either party. Third,
with respect to extracurricular activities, the parties, in sum and
substance, agreed that each child shall be entitled to participate in
one extracurricular activity with the cost being shared on a "50/50"
basis, with consent being required in order to trigger a financial
responsibility for same. The Court does not find this provision to be
unconscionable or manifestly unfair to one parties inasmuch as the
Plaintiff had the lower share of the parties' combined parental income
and agreed to split the cost on an equal basis and inasmuch as consent
is required to trigger a financial responsibility for same.
Likewise, the parties effectively conferred upon themselves joint
decision-making with respect to the area of extracurricular activities.
There is nothing unfair about that agreement.
Fourth, the parties agreed to each of them would create a
music production space for C III in their basement and that they would
each pay for one session per month of C III's music production studio
activity until they have a studio. The Court does not find this
provision to be manifestly unfair or unconscionable inasmuch as the
parties agreed to provide a space for C III in order to save on costs of
this activity, the parties both agreed to this, effectively providing
them with joint decision-making over this issue, and that the Plaintiff
has the lower share of the parties' combined parental income. Fifth, the parties agreed that to send the children to summer camp and split the cost of same on a "50/50" basis (see
Custody Stipulation, page 5). The Court does not find this provision to
be manifestly unfair inasmuch as the agreement to send the children to
camp was a joint decision and inasmuch as they are equally splitting the
cost of same.The parties also agreed to an additional protection that
if there is going to be a change in camp, the party seeking the change
must obtain the agreement of the other before the nonrequesting is
obligated to pay his or her 50% of same.
Sixth, with respect to schooling, the parties agreed
that C III and C A would attend a boarding school and that CH A would
attend a different independent school. The parties also agreed that with
respect to the actual choice of school, the parties would discuss same,
could then meet an educational consultant if they disagreed with the
other, with the Plaintiff having final decision-making authority in the
event of a further disagreement, without prejudice to the Defendant's
right to petition a court of competent jurisdiction. The Court does not
find this to be manifestly unfair or unconscionable inasmuch as the
parties agreed to send one child to an independent school and two
other children to boarding school. While the Defendant complains that
the children should be in public school, that is contrary to their agreement
that the children attend either an independent school or boarding
school, and, in any event, the Defendant had a remedy if he disagreed
with the decision: petition a court for relief.
Accordingly, and for all of the aforesaid reasons, it is hereby:
ORDERED, that so much of Branch (1) of the Defendant's Order to Show
Cause dated October 25, 2023 which seeks to set aside the Custody
Stipulation and the Financial Stipulation on the ground of
unconscionability be and the same is hereby DENIED.
MODIFICATION OF CUSTODY
The standard for modification of an existing custody or parental
access order is well-known. In order to modify an existing
court-sanctioned custody arrangement, there must be a showing of a
subsequent change in circumstances so that modification is required to
protect the best interests of the child. Matter of Newton v. McFarlane, 174 AD3d 67 (2d Dept. 2019); Henrie v. Henrie, 163 AD3d 927 (2d Dept. 2018); Matter of Feliciano v. King, 160 AD3d 854 (2d Dept. 2018); Matter of Miller v. Shaw, 160 AD3d 743 (2d Dept. 2018).
Not only must the moving party demonstrate that a change of
circumstances has occurred, but the moving party must also demonstrate
that modification is necessary to ensure the children's (or child's)
best interests. See generally Matter of Chris X. V. Jeanette Y., 124 AD3d 1013 (3d Dept. 2015). See also Grayson v. Fenton, 13 AD3d 914 (3rd Dept. 2004).
It is well-settled that the primary consideration in all custody disputes is the best interest of the child. See Keating v Keating, 147 AD2d 675 (2d Dept. 1989).
It is further established that as a general rule, it is error as a
matter of law to make an order respecting custody based on controverted
allegations without having had the benefit of a full hearing (see Biagi v. Biagi, 124 AD2d 770 (2d Dept. 1986); see also Colley v. Colley, 200 AD2d 839 (3d Dept. 1994)), and custody determinations should generally be made only after a full and plenary hearing. Palazzola v. Palazzola, 188 AD3d 1081 (2d Dept. 2020); see also Trazzera v. Trazzera, 199 AD3d 855 (2d Dept. 2021).
A noncustodial parent seeking a change in custody is not automatically
entitled to a hearing, but must make an evidentiary showing sufficient
to warrant a hearing (see McNally v McNally, 28 AD3d 526, 527, 816 NYS2d 98 [2006]; Matter of Simmons v Budney, 5 AD3d 389, 390, 772 NYS2d 543 [2004]; Corigliano v Corigliano, 297 AD2d 328, 329, 746 NYS2d 313 [2002]; DiVittorio v DiVittorio, 283 AD2d 390, 390-391, 723 NYS2d 863 [2001]). DiVittorio v. DiVittorio, 36 AD3d 848 (2d Dep't 2007).
However, while the general right to a hearing in custody and visitation
cases is not absolute, where facts material to the best interest
analysis, and the circumstances surrounding such facts, remain in
dispute, a hearing is required. See Palazzola v Palazzola, supra; see also Trazzera v. Trazzera, supra. See also Stolzenberg v. Stolzenberg, 209 AD3d 688 (2d Dept. 2022). The Court of Appeals has made clear:
Given the goals of stability and permanency, as well as the
weight of the interests at stake, the societal cost of even an
occasional error in a custody proceeding is sizeable. Custody
determinations therefore require a careful and comprehensive evaluation
of the material facts and circumstances in order to permit the court to
ascertain the optimal result for the child. The value of a plenary
hearing is particularly pronounced in custody cases in light of the
subjective factors—such as the credibility and sincerity of the
witnesses, and the character and temperament of the parents—that are
often critical to the court's determination.
S.L. v. J.R., 27 NY3d 558 (2016).
Here, the Court finds that there are sufficient facts in dispute to
warrant a hearing on the Defendant's application seeking to modify the
parties' Custody Stipulation with respect to CH A. While some of the
Defendant's allegations predate the date of the Custody Stipulation (and
the Court has not considered those herein), the Court notes that the
Defendant has alleged that the Plaintiff has twice had CPS called on him
since the date of the Custody Stipulation. The Court notes that,
without contradiction, that the Plaintiff made a CPS complaint against
the Defendant on April 12, 2023 and that she filed a Family Offense
Petition on August 7, 2023 alleging that the Defendant abuses the
children. The Court cannot simply ignore or cast there allegations
aside. See generally Matter of Honeywell v. Honeywell, 29 AD3d 857 (2d Dept. 2007)
(repeated and unfounded allegations of abuse may constitute conduct
inconsistent with the best interests of the children). The Court has
considered that CH A is now eleven (11) years old, and while her wishes
and desires may be some indication of her best interests (see generally Silverman v. Silverman, 186 AD3d 123 (2d Dept. 2020)), a child's preference is not determinative (see generally Matter of Ceballos v. Leon, 134 AD3d 931 (2d Dept. 2015)).
Additionally, the Court has considered the unrefuted allegation of
the AFC that CH A has witnessed the Defendant use extreme corporal
punishment on her brothers. However, the Court has also considered that
there was an incident — after the Custody Stipulation — where CH A
(again) attempted self-harm (confirmed by the AFC). While the Court is
unsure what the impetus was for that self-harm, the Court cannot ignore
that undisputed fact, and the Court must take live testimony from the
parties to ascertain how CH A was impacted (if at all), and whether or
not the existing custodial arrangement remains in the best interests of
CH A. This Court would effectively be abdicating its duty to this child
if it did not take live testimony from the parties, given the
seriousness of the allegations proffered by both parties. Furthermore,
since the Defendant's application only seeks a transfer of custody of CH
A, and not her two brothers, this Court must consider the effect such a
transfer would have on CH A and well as on her two brothers, as sibling
relationships should be not disrupted unless there is some overwhelming
need to do so. See generally White v. White, 209 AD2d 949 (4th Dept. 1994).
Since custody determinations depend to a great extent upon the court's
assessment of the credibility of the witnesses, as well as the parties'
character, temperament and sincerity (see Matter of Brass v. Otero, 40 AD3d 752 (2d Dept. 2007), it is hereby:
ORDERED, that Branch (3) of the Defendant's Order to Show Cause dated
October 26, 2023, be and the same is hereby REFERRED TO A HEARING.
CONTEMPT OF COURT
Contempt is a drastic remedy which should not be granted absent a clear right to the relief. Pinto v. Pinto, 120 AD2d 337 (1st Dept. 1986) (emphasis added); see also Board of Mgrs. of the Empire Condominium v. Attwood, 2014 NY Misc. LEXIS 2265 (Supreme Court New York County 2014); see also Usina Costa Pinto SA v. Sanco Sav Co. Ltd., 174 AD2d 487 (1st Dept. 1991). Contempt is a drastic remedy which necessitates strict compliance with procedural requirements. Loeber v. Teresi, 256 AD2d 747 (3d Dept. 1998) (emphasis added); see also C.M. v. E.M., 2023 NY Misc. LEXIS 22693 (Supreme Court Nassau County 2023); see also S.P. v. M.P., 210 AD3d 1439 (4th Dept. 2022).
Pursuant to Judiciary Law § 753(A)(3):
"A court of record has power to punish, by fine and
imprisonment, or either, a neglect or violation of duty, or other
misconduct, by which a right or remedy of a party to a civil action or
special proceeding, pending in the court may be defeated, impaired,
impeded, or prejudiced, in any of the following cases:
* * *
"3. A party to the action or special proceeding, an
attorney, counsellor, or other person, for the non-payment of a sum of
money, ordered or adjudged by the court to be paid, in a case where by
law execution can not be awarded for the collection of such sum except
as otherwise specifically provided by the civil practice law and rules;
or for any other disobedience to a lawful mandate of the court."
School Tuition
The Plaintiff does not dispute the Defendant's claims that the TRO's
with respect to the payment of the Rectory School, Hebron Academy and
the Hyde School have been paid. The Plaintiff does not submit any
evidence that any additional tuition fees are due beyond the parameters
of the TRO's. Accordingly, it is hereby:
ORDERED, that Branches (a) and (c) of the Plaintiff's Order to Show
Cause for Contempt dated December 20, 2023 be and the same are all
hereby deemed MOOT.
Other Add-On Expenses
The Financial Stipulation provides:
The parties shall equally divide the cost of the children's
add-on expenses, including their agreed upon extracurricular activities,
their unreimbursed medical, dental, orthdontia and optical expenses,
their educational expenses such as: Private school tuition,
applications, tutoring.
The parties shall continue to use Our Family Wizard and
equally share the cost of same. All invoices and receipts in connection
with add-on expenses for the children must be uploaded into Our
Family Wizard within 30 days of incurring such debt, and reimbursement
to the parent that paid the cost must be made within 15 days of
presentation with the receipt/invoice.
The parties agree that with respect to tuition for the
children's private school education, the father shall pay his 50 percent
of the children's tuition cost directly to the mother via Zelle or some
other ACH payment, and that the mother shall remit the full payment of
the tuition to the school. The mother shall provide the father with all
invoices and receipts in connection with the tuition in a timely fashion
so that he knows when to make such payment and that the payment has
been made.
(see Financial Stipulation, page 4) (emphasis added).
Here, the Court is constrained to deny the Plaintiff's application
for contempt without prejudice and with leave to renew upon the
submission of proper papers. While it would appear that some of the Our
Family Wizard entries, themselves, are appended to the Plaintiff's
moving papers, the Plaintiff fails to append the actual invoice and
proof of payment to her moving papers with respect to some of those
expenses, such as camp and some of the tuition invoices. Without the
actual invoice and proof of payment, this Court is unable to grant the
Plaintiff the drastic remedy of contempt at this time, as that
evidence should have been before the Court. It also appears from the
Plaintiff's moving papers that there are invoices or receipts from her
"gmail" account, but the Court is unsure, based on this Record, as to
whether or not those were posted to Our Family Wizard, as mandated by
the parties' Financial Stipulation. Rather than deny the request
outright, since these expenses are for the benefit of the parties'
children, the Court grants the Plaintiff leave of Court to re-file the
application with the appropriate proof appended thereto. Accordingly, it
is hereby:
ORDERED, that Branches (b) and (d) of the Plaintiff's Order to Show
Cause for Contempt dated December 20, 2023 be and the same are all
hereby DENIED WITHOUT PREJUDICE and with leave to renew upon the
submission of proper papers insofar as indicated herein.
COUNSEL FEES/SANCTIONS
The Plaintiff seeks both sanctions and counsel fees. The Court has
carefully reviewed the invoices appended to the Plaintiff's moving
papers (see NYSCEF Document No.: 334) and cross-moving papers (see
NYSCEF Document No.: 353). The Court notes that both sets of invoices
contain charges dating back to 2021, which was before the parties agreed
to the terms of the Stipulation(s), and that there appears to be
charges related to Family Court matters. The Court is unable to
ascertain what time charges were incurred after the parties entered into
both Stipulation(s), and, even if they do post-date the Stipulation(s),
whether or not those charges pertain the family court matters or these
matters inasmuch as those times charges are not isolated with enough
specificity. The Court therefore denies the Plaintiff's application for
sanctions and/or counsel fees without prejudice to her right to re-file
the application with the time charges incurred in connection herewith
isolated, indicated or specifically denoted on her invoices.
Accordingly, it is hereby:
ORDERED, that Branch (e) of the Plaintiff's Order to Show Cause for
Contempt dated December 20, 2023 and Branch (1) of the Plaintiff's
Notice of Cross-Motion dated January 10, 2024 be and the same are all
hereby DENIED WITHOUT PREJUDICE and with leave to renew/refiling upon
the submission of proper papers insofar as indicated herein.
Any other relief requested not specifically addressed herewith is hereby DENIED.
All parties and counsel and the attorney for the children are hereby
directed to appear in the Supreme Court, Nassau County, before the
undersigned Justice at the Matrimonial Center in IAS/Matrimonial Part 11
on March 26, 2024 at 10:00 a.m. for a PRE-HEARING CONFERENCE and to
select a hearing date.
The foregoing constitutes the DECISION & ORDER of this Court.
[1] The Custody Stipulation was so ordered by the undersigned Justice on April 12, 2023.
[2] The Financial Stipulation was so ordered by the undersigned Justice on April 12, 2023.
[3]
At times hereinafter in this Decision and Order, the Custody
Stipulation and the Financial Stipulation may be collectively referred
to as the "Stipulation(s)".
[4] In the absence of the undersigned Justice.
[5]
He sets forth that the complaints were made as follows: November 24,
2020, determined as unfounded on March 25, 2021; November 14, 2022,
determined unfounded on May 1, 2023; February 2, 2023, determined to be
unfounded on May 1, 2023; April 12, 2023, determined to be unfounded on
May 1, 2023; and August 7, 2023, determined to be unfounded on August
25, 2023.
[6]
The AFC sets forth that the Final Order of Protection, in sum and
substance, requires the Defendant to stay away from the Plaintiff, C III
and C A, and directs the Defendant to refrain from communication with
the Plaintiff, C III and C A, except for parenting or the well-being of
the children, as well as directing the Defendant to refrain from
committing any hazardous acts with respect to all three children.
[7] The Second Department has also emphasized that stipulations are not to be lightly case aside especially where the party seeking to vacate the stipulation was represented by counsel. Kelly v. Chavez, 33 AD3d 590 (2d Dept. 2006).
[8] See Custody Stipulation, page 10, lines 16-19; see Financial Stipulation, page 20, lines 8-11.
[9]
In both the Custody Stipulation and Financial Stipulation, this Court
wishes to punctuate that it specifically told the parties that they had
the right to proceed to trial with respect to the issues that they
agreed to settle.
[10] The Court also notes that the Financial Stipulation itself provides the following:
THE COURT: Are you each satisfied with the representation you have received?
MS. L: Yes.
MR. L: Yes.
The Court finds that the Defendant's on the Record acknowledgment
that he was satisfied with the representation he received from his
counsel defeats his claim that his attorney was "bulldozed".
[11] $1,700.00 per month × 12 (monthly per year) × 11 (approximate years remaining on his child support obligation) = $224,400.00.
[12] The Defendant does not allege that he made an application to adjourn the trial and was denied this request.
[13]
It does not appear to the Court that the Defendant claims that the
parental access schedule, both regular and holiday and summer, to be
unconscionable or manifestly unfair. Therefore, those provisions of the
Custody Stipulation are not discussed herein."
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