Opinion
Index No. 68624/2016
01-17-2024
S.G., Plaintiff, v. M.Y.L.G., Defendant.
The following papers, numbered 1 to 18, were considered in connection with Plaintiff's Order to Show Cause, dated September 8, 2023, seeking to enforce the parties’ Judgment of Divorce, and Defendant's Notice of Cross Motion, dated October 5, 2023, seeking, inter alia , reimbursement of money lost in the sale of the marital residence and payment of children's medical expenses.
PAPERS NUMBERED
Order to Show Cause/Plaintiff's Affidavit 1-2
Notice of Cross Motion/Affidavit in Opposition and in Support of Cross Motion/Exhs. A-L 3-16
Plaintiff Affidavit in Opposition to Cross Motion 17
Defendant Reply 18
The parties were married on May 7, 2001. Together, they have four (4) children, G.G., age twenty (20), T.G., age seventeen (17), K.G., age fourteen (14) and J.G., age twelve (12). Plaintiff commenced this action for a divorce and ancillary relief by the filing of a Summons with Notice (NYSCEF Doc. No. 1). with the Westchester County Clerk on December 8, 2016. Defendant filed a Request for Judicial Intervention on February 2, 2017 (NYSCEF Doc. No. 2).
The issues arising out of the parties’ divorce were resolved by a Stipulation and Agreement (hereafter "Stipulation"; NYSCEF Doc. No. 13) filed on July 24, 2017. A Judgment of Divorce (hereafter "Judgment"; NYSCEF Doc. No. 21) incorporating but not merging the parties’ Stipulation was signed by the Hon. John P. Colangelo, J.S.C. on October 23, 2017 and entered in the office of the Westchester County Clerk on October 31, 2017.
The parties commenced post-divorce litigation by Defendant's filing of an Order to Show Cause (Motion Seq. No. 1) on June 13, 2019 (NYSCEF Doc. No. 35). The Order to Show Cause was signed by the Court (Lubell, J.) on June 25, 2019 and filed on June 27, 2019. The motion sought the appointment of Defendant as receiver of the marital residence or, in the alternative, an order compelling Plaintiff to sign the contract of sale therefor and an award of reasonable attorney's fees. By Decision and Order (NYSCEF Doc. No. 48) entered December 3, 2019, Special Referee Josephine Trovini, having been notified at an appearance on September 19, 2019 that Plaintiff executed the contract of sale and agreed to sign a limited power of attorney permitting Defendant to execute all necessary documents at the closing, decided the remaining issue of Defendant's request for an award of legal fees on the papers submitted. Upon such determination, it was ordered that the sum of $1,800.00 be paid by Plaintiff to Defendant's attorney from Plaintiff's share of the proceeds of the sale of the former marital residence, or, if the sale had occurred by the issuance of the Decision and Order, within thirty (30) days thereof. Upon Plaintiff's failure to pay as ordered, Defendant's counsel was granted leave to enter judgment on notice to Plaintiff.
On January 22, 2020, Defendant filed an Order to Show Cause (Motion Seq. No. 2) seeking an order modifying the Judgment of Divorce and awarding Defendant sole legal custody, removing and consolidating pending Family Court proceedings, ordering that Plaintiff's parenting time with the children be supervised and his phone contact limited, holding Plaintiff in contempt of court, and awarding Defendant reasonable attorney's fees (NYSCEF Doc. No. 52). The Order to Show Cause was signed on February 3, 2020 and entered on February 4, 2020 (Everett, J.) (NYSCEF Doc. No. 62). Answering papers were due by February 28, 2020 and an appearance was scheduled for March 24, 2020. Plaintiff filed an affidavit entitled "Answer" dated March 9, 2020 and electronically filed on March 10, 2020 (NYSCEF Doc. No. 67). Defendant's attorney filed a Notice of Rejection (NYSCEF Doc. No. 68) of Plaintiff's answering papers with the Court as untimely. The motion was marked withdrawn on August 3, 2020.
This case was administratively transferred to the undersigned on or about March 17, 2023. Motion Sequence Numbers 3 and 4 were filed on February 9, 2023 and March 17, 2023, respectively (NYSCEF Doc. Nos. 71, 76). Plaintiff sought an Order, enforcing the Judgment of Divorce by: (a) directing that Defendant cooperate with the refinance of the marital residence and removing Plaintiff from the existing mortgage; (b) indemnifying Plaintiff from liability or costs associated with the marital residence upon the signing of the Stipulation and Agreement on July 24, 2017; (c) directing Defendant to place the marital home up for sale on or before June 30, 2018 (sic) with an agreed notional (sic) value of $379,000 if she was unable to secure refinancing; (d) directing Defendant to pay $15,000 in equity to Plaintiff upon the sale of the marital home; (e) directing the entry of a judgment in the sum of $10,000 which represented 50% of the ill-gotten additional gains Defendant realized at closing due to her breach of the Judgment of Divorce; (f) holding Defendant in contempt of court for her failure to comply with the terms of the Judgment of Divorce; (g) directing Defendant to comply with the parties’ Stipulation and Agreement dated July 24, 2017; (h) directing that Defendant provide Plaintiff with any and all required tax documents upon request in a timely fashion; and (i) granting to Plaintiff such other and further relief as to this Court may seem just and proper.
Defendant cross moved for an Order: (a) dismissing Plaintiff's motion pursuant to the terms of the "Stipulation and Agreement" incorporated into the Judgment of Divorce; (b) awarding reasonable attorney's fees; (c) enforcing the attorney's fees award of $1,800.00 ordered in 2019; (d) reimbursing Defendant for monies dissipated in the sale of the marital residence; (e) enforcing payment of medical expenses for the children; (f) awarding emotional damages; and (g) granting such other, further and different relief as the Court deems proper.
On July 10, 2023, the Court denied Plaintiff's motion (Motion Seq. #3) without prejudice, inter alia , to the extent he failed to comply with the notice of default provisions of the Stipulation and Agreement. The Court also denied Defendant's cross motion (Motion Seq. #4) without prejudice, inter alia , to the extent she failed to establish a basis to seek a money judgment for the alleged unreimbursed medical expenses for the parties’ children (NYSCEF Doc. No. 89).
On September 8, 2023, Plaintiff presented the instant Order to Show Cause to the Court (Motion Seq. #5), seeking an Order "[t]o enforce the Judgment of Divorce that equity in the marital home would be paid to Plaintiff at closing" (NYSCEF Doc. No. 91). The Court signed the Order to Show Cause and set the matter down for a conference on the motion on September 15, 2023, indicating that in person appearances were required on the return date, at which time the Court would set a briefing schedule, if needed (NYSCEF Doc. No. 93). The Court directed that Defendant be served by overnight mail on or before September 13, 2023 (NYSCEF Doc. No. 93 at 2).
Plaintiff served Defendant's counsel by UPS on September 13, 2023 and filed the Affidavit of Service on September 15, 2023 (NYSCEF Doc. No. 94).
Plaintiff and Defendant's counsel appeared in court on September 15, 2023. Defendant did not appear. Despite defense counsel's objection to the contrary, the Court determined that Westchester Supreme Court was an appropriate venue for this application and set a briefing schedule (NYSCEF Doc. Nos. 95-96). The Court ordered that opposition papers and/or cross motion shall be filed by October 6, 2023, reply papers to the motion and opposition to the cross motion shall be filed by October 20, 2023, and reply papers to the cross motion shall be filed by November 3, 2023. The Court set November 3, 2023 as the return date for the motion/and or cross motion, with no appearances and no oral argument, and that the decision would be rendered upon submission (NYSCEF Doc. No. 95).
Specifically, in Motion Seq. No. 5, Plaintiff moves for an Order:
A) Enforcing the Judgement of Divorce by this Court on October 31, 2017, that the Defendant pay $15,000 in equity to the Plaintiff upon the sale of the Marital Home.
B) Enforcing the Judgement of Divorce by this Court on October 31, 2017, indemnifying the Plaintiff from any liability or costs associated with the Marital Property upon the signing of the Stipulation of Divorce on July 24, 2017.
C) Enter a judgement in the sum of $10,000 which represents 50% (one-half share) of the ill-gotten additional gains the Defendant realized at closing due to her breach of the Order of Divorce.
D) Holding the Defendant in contempt of court for her failure to comply with the terms of the Judgment of Divorce herein; and
E) Directing the Defendant to comply with the parties’ Stipulation of Divorce dated July 24, 2017; and
F) Directing that the Defendant provide the Plaintiff any and all required tax documents upon request in a timely fashion; and
G) Granting to the Plaintiff $25,000 in monetary damages caused by the Defendant's willful repeated breaches of The Order, and years of continuous, malicious conduct causing tremendous financial harm and credit injury to The Plaintiff as a result;
H) Granting to the Plaintiff, such other and further relief as to this Court may seem just and proper.
In response to Plaintiff's Order to Show Cause, in Motion Seq. No. 6, Defendant cross moves for an Order:
1. Dismissing Plaintiff's application or in the alternative denying same;
2. Awarding reimbursement for money lost (because of lost equity) in the sale of the marital residence;
3. Enforcing payment of medical expenses for the children;
4. Awarding reasonable attorneys fees; and
5. Granting such other, further and different relief as the court deems proper.
The Parties’ Contentions
Plaintiff moves again, generally, for an order enforcing the Judgment. As stated in the Court's prior Decision and Order, a review of Plaintiff's prayers for relief reveals that several items cannot be granted upon the papers as presented. For example, to the extent Plaintiff seeks an order holding Defendant in contempt of Court (see Item [D]) for her alleged failure to comply with the terms of the Judgment, such relief must be denied because of Plaintiff's failure to include the required statutory warnings on his motion. Pursuant to Judiciary Law § 756, a contempt application must be in writing, must be made upon at least 10 days’ notice, and must contain on its face the statutory warning that failure to appear in court may result in immediate arrest and imprisonment for contempt of court ( Board of Mgrs. of Brightwater Towers Condominium v M. Marin Restoration, Inc. , 206 AD3d 605, 607 [2d Dept 2022] ).
Plaintiff asserts that he has notified Defendant's attorney of record by certified mail of Defendant's default, as opposed to Defendant herself due to the Order of Protection issued against him (NYSCEF Doc. No. 92 at 2, 14-15, 17-18). In that referenced July 15, 2023 default letter, Plaintiff noted that Defendant was required to pay him $15,000.00 from the sale of the marital home, but instead Defendant "accepted the proceeds of sale in full to offset child support arrearages," and has "refus[ed] to acknowledge receipt of this money" (NYSCEF Doc. No. 92 at 15). Plaintiff stated further in the default letter that he has notified Defendant's counsel by certified letter to comply with the default provisions "with the full knowledge that a summary judgement for this money plus damages, a claim of $10,000 for ill-gotten gains, and attorney's fees is all but certain if I am not paid $15,000 within the next fifteen days" (NYSCEF Doc. No. 92 at 15).
Plaintiff claims he offered Defendant "yet another offer for a charitable settlement," and "[a]ll entrees for settlement were flatly refused" (NYSCEF Doc. No. 92 at 2). Plaintiff argues further that "[b]ecause the Defense offered no evidence and showed absolutely no cause for non-payment, and for the blatant misallocation of monies paid as proven in" the Court's prior Decision and Order, "I move that we proceed to Summary Judgement as there are no facts that are in dispute in this case. All that remains is the determination of damages, and the order for the misallocated monies to be rightly credited to me" (NYSCEF Doc. No. 92 at 2). Specifically, Plaintiff demands: (a) $14,200 in monied paid by way of equity in the Marital Home that was agreed to be applied to arrearages; (b) $10,000 (50%) of the $20,000 ill-gotten gains that the Defendant received by windfall by failing to uphold The Stipulation and received because of her actions; and (c) any damages the court sees fit to order for the willful, malicious actions of the Defendant that has caused, and is still causing me, tremendous financial harm (bankruptcy), and damage to my credit rating (for falsely claimed arrears) (NYSCEF Doc. No. 92 at 2).
Defendant opposes the motion and cross-moves for various relief. Defendant relates that the parties entered into a Stipulation of Settlement on or about July 24, 2017, which was incorporated but not merged into the October 23, 2017 Judgment of Divorce. She states that the Stipulation required her to either refinance the house or sell it and pay Plaintiff $15,000.00 from the proceeds (NYSCEF Doc. No. 98 at ¶¶3-4).
Defendant asserts that in the beginning of February 2019, Plaintiff was notified that there were possible buyers for the home, but that Plaintiff began to make unreasonable demands to her attorney regarding his child support arrears and a downward modification (NYSCEF Doc. No. 98 at ¶¶5-6). Due to Plaintiff's continued refusal to sign the contract for sale through the Spring of 2019, Defendant's counsel moved to have Defendant appointed as Receiver of the home. As a result of the filing of the motion, Plaintiff ultimately signed the contract of sale and granted Defendant a limited power of attorney to sign all documents necessary to complete the real estate transaction. Defendant was awarded counsel fees of $1,800.00 (NYSCEF Doc. Nos. 102-103). The fee award was to "be paid by plaintiff to defendant's counsel from plaintiff's share of the proceeds from the sale of the former marital residence" (NYSCEF Doc. No. 103 at 4). The home closed on October 31, 2019 (NYSCEF Doc. No. 89 at 6); thus, counsel fees were to be paid within 30 days of the December 2, 2019 Decision and Order (NYSCEF Doc. No. 103 at 4).
Defendant notes that during the nine-month dispute over the sale of the marital residence, Plaintiff stopped paying maintenance and child support, causing her to be unable to pay the mortgage (NYSCEF Doc. No. 98 at ¶¶14-15). Defendant explains that she was to pay Plaintiff $15,000.00 from the net proceeds of sale per their Stipulation, but attorney's fees of $1,800.00 were to be deducted from that figure as per court order (NYSCEF Doc. No. 103 at 4), and Defendant then credited Plaintiff with child support of $883.23 from the proceeds leaving a balance owed of $12,316.77 (NYSCEF Doc. No. 98 at ¶17).
Defendant requests an award of equities lost due to Plaintiff's willful failure and refusal, claiming she is entitled to $15,539.32, representing the financial damage she suffered of Plaintiff's willful refusal to sign the contracts in February. Defendant explains that this sum is the total of $12,316.77 and the escrow balance of $3,222.55, which went to pay back real estate taxes and/or insurance (NYSCEF Doc. No. 98 at ¶¶20-23).
Simply put, and as previously asserted, Defendant argues that Plaintiff prevented the sale of the home for a period of nine (9) months (February to October 2019) and that his actions caused her financial and emotional damages, which she now seeks to re-coup in her cross-motion. Specifically, and sometimes inexplicably, Defendant seeks the following damages: (a) the escrow from the Chase mortgage account as of April 2019 in the sum of $3,222.55; (b) equity lost in the amount of $12,316.77 ; (c) legal fees for the balance owed and those for this motion of $5,665.00; and (d) Plaintiff's share of the children's medical expenses in the sum of $875.94.
There is no indication from where Defendant obtained this figure and curiously, it is the same net figure that she admits Plaintiff is entitled to from his $15,000.00 pay out.
Discussion
As a threshold matter, Defendant asserts that this Court lacks jurisdiction to entertain Plaintiff's Order to Show Cause for failing to obtain jurisdiction over Defendant. " ‘[T]he mode of service provided for in [an] order to show cause is jurisdictional in nature and must be literally followed’ " ( Gonzalez v Haniff , 144 AD3d 1087, 1088 [2d Dept 2016], quoting Matter of Bell v State University of New York at Stony Brook , 185 AD2d 925 [2d Dept 1992] ). "The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion" ( Gonzalez v Haniff , 144 AD3d at 1088 ). Here, the Court directed Plaintiff to serve Defendant by overnight mail. However, Plaintiff served Defendant's counsel by overnight mail, not Defendant. As such, the court does not have jurisdiction to hear the motion. The fact that there was an order of protection in effect does not warrant a different conclusion.
In any event, Plaintiff asserts Defendant defaulted under the Stipulation and Judgment. Specifically, Plaintiff claims Defendant failed to pay him his $15,000.00 equitable share of the former marital residence. Defendant opposes the motion and cross-moves for financial damages and legal fees, caused by Plaintiff's interference with the sale of the former marital residence for a period of nine (9) months.
As noted above, the Court will not address those prayers for relief in which Plaintiff seeks an order holding Defendant in contempt of Court for Plaintiff's alleged failure to comply with the terms of the Judgment for the reasons previously stated.
This Court's analysis of the issues raised in these cross motions begins with the relevant portions of the parties’ Stipulation, which provides for conditions precedent to the commencement of an enforcement proceeding against an alleged defaulting party, as follows (NYSCEF Doc. No. 13 at 44):
ARTICLE XXI - DEFAULT IN OBLIGATIONS
(A) In the event that the Husband or Wife defaults with respect to any obligation under this Agreement, and said default is not remedied within fifteen (15) days after the sending of a written notice by certified mail, return receipt requested or by overnight delivery service, to the defaulting party specifying said default, the defaulting party hereby indemnifies the other party against, and shall reimburse that party for, any and all expenses, costs and reasonable attorneys’ fees resulting from or made necessary by the bringing of any suit or other proceeding to enforce any of the terms, covenants or conditions of this Agreement to be performed or complied with by the defaulting party or to enforce any of the defaulting party's rights to recover any amount to be paid pursuant to this Agreement, provided such suit or other proceeding results in a judgment, decree or order in favor of the non-defaulting party.
(B) For the purposes of this Agreement, it is understood and agreed that in the event either party shall institute a suit or other proceeding against the other to enforce any of the terms, covenants or conditions of this Agreement, and after the institution of such action or proceeding, and before judgment is or can be entered, the other party shall comply with such term or condition of this Agreement, then and in that event, the suit, motion or proceeding instituted by the other party shall be withdrawn. However, the party defendant in said suit or proceeding shall also promptly reimburse the party plaintiff for all costs and reasonable attorneys’ fees incurred as a result of said suit or proceeding.
Accordingly, to seek remedies for an alleged default under the Stipulation, the non-defaulting party must send a written notice by certified mail, return receipt requested, or by overnight delivery to the defaulting party. If the defaulting party does not cure the default within fifteen (15) days after the written notice is sent, and the non-defaulting party commences a court proceeding with respect thereto, then the defaulting party is liable to the other for the costs, expenses and attorneys’ fees resulting therefrom, provided that he or she is successful in the Court proceeding.
Again, there is no evidence that Plaintiff followed the above-stated procedure and sent Defendant written notification in accordance with the Stipulation that she failed to provide him with $15,000.00 as and for his equitable share of the marital home. His claim that he sent this default notification to Defendant's attorney rather than Defendant due to the stay away order of protection is unpersuasive, as there is no provision within the parties’ Stipulation of Settlement for alternative notification. Having failed to comply with the conditions precedent in the Stipulation, Plaintiff's motion is denied without prejudice.
Turning now to Defendant's cross-motion, Defendant seeks damages against Plaintiff for costs she claims she incurred because Plaintiff delayed the sale of the marital residence for a period of nine months. The sum sought by Plaintiff for the escrow from the Chase mortgage account as of April 2019 is $3,222.55 that was exhausted to pay back taxes and/or insurance is disallowed pursuant to the clear and unequivocal language of the Stipulation which provides as follows:
ARTICLE XIV — MARITAL RESIDENCE
(B) Effective immediately upon the execution of this Agreement, all utility accounts for services provided to the marital residence shall be transferred from the name of the Husband to the name of the Wife and the Wife shall henceforth be solely responsible to pay in a timely manner, all costs and carrying charges on and to the marital residence including but not limited to the mortgage obligations, taxes, utilities, homeowners insurance and repairs. The parties shall promptly take all steps necessary to remove the Husband as payor/obligor on all accounts under any and all existing automatic payment arrangements with Chase Bank, all utility providers and other companies providing service to the marital residence. The Wife shall indemnify and hold the Husband harmless from all liability in connection with such expenses including but not limited to reasonable attorney's fees.
Accordingly, pursuant to the clear terms of the Stipulation, Defendant is not entitled to recover the aforementioned expenses.
Defendant's claim that Plaintiff failed to reimburse him for the children's medical expenses must be denied as there is no proof that Defendant complied with the conditions precedent in the Stipulation with respect to "Default in Obligation" (see supra at 10). Furthermore, many of the invoices are difficult to read or are completely illegible.
Those branches of Plaintiff's motion seeking damages and a percentage of Defendant's "ill-gotten gains" are denied without basis in fact or law upon this motion. Similarly, those portions of Defendant's cross motion which effectively seek emotional damages "for having lost more than $15,000 in equity for no other reason other than the plaintiff holding out in signing the contracts ... in order to coerce me into reducing his support arrears and consenting to a downward modification" are denied as without a basis in fact or law upon this motion.
Defendant's application for an award of counsel fees is denied. Defendant did not prevail on any aspect of her motion.
Accordingly, it is hereby
ORDERED that Plaintiff's motion (seq. #5) is denied for the reasons stated herein; and it is further
ORDERED that Defendant's cross motion (seq. #6) is denied for the reasons stated herein; and it is further
ORDERED that any issue not directly addressed herein is denied.
The foregoing constitutes the Decision and Order of the Court.