Opinion
07-24-2024
C.B., Plaintiff, v. R.B., Defendant.
Plaintiff, Pro Se Co-Counsel for Defendant: Miller Zeiderman LLP By: Ashley R. Kersting, Esq. & Kevin P. Sylvester, Esq. Co-Counsel for Defendant: Law Offices of Risa K. Kass, P.C. By: Risa K. Kass, Esq.
Unpublished Opinion
Plaintiff, Pro Se
Co-Counsel for Defendant:
Miller Zeiderman LLP
By: Ashley R. Kersting, Esq. & Kevin P. Sylvester, Esq.
Co-Counsel for Defendant:
Law Offices of Risa K. Kass, P.C.
By: Risa K. Kass, Esq.
Ariel D. Chesler, J.
BACKGROUND
Plaintiff-Mother, C. B. (the Mother) moves by order to show cause seeking this Court enter an order awarding, inter alia, (1) enforcement of decision-making provisions of the parties' Stipulation of Settlement and its subsequent Modification (hereinafter: the Modified Agreement); (2) modification of custody so as to award the Mother final-decision making authority; (3) ordering Defendant-Father pay $5,000.00 per child per year for costs associated with both final decisions and extracurriculars; and (4) directing Defendant-Father to produce financial aid documents within seven (7) days of Plaintiff's request for same, and if Defendant-Father fails to do so, directing he bare 100% of the cost for the program irrespective of the cap set forth in the Stipulation of Settlement. The Parenting Coordinator submitted an affidavit supporting the Mother's Order to Show Cause.
The parties during their underlying divorce entered into an initial custody and parenting time agreement in 2021. The provisions of the 2021 custody and parenting time agreement were partially modified by the parties proceeding Stipulation of Settlement, which was incorporated but did not merge with the parties' Judgment of Divorce.
Defendant-Father, R.B3 (the Father) cross-moves for an order awarding, inter alia, (1) enforcing the parties agreements: (i) final-decision making provisions, (ii) extracurricular scheduling provisions, (iii) parenting-coordinator provision; (iv) the add-on cap provisions; and (2) for counsel fees. (Def. Notice of Cross-Motion MSN 007 [NYSCEF Doc. No. 361]).
The Court held an oral argument on this order to show cause. The Father was represented by counsel and the Mother proceeded pro se.
DISCUSSION
Many of the requests sought by both parties directly implicate a fundamental disagreement between the parties as to key provisions of the parties' paired agreements. Two key provisions at issue predominant the parties' competing motions, namely, the Parenting Coordinator Provisions and the child support add-on cap provisions.
Regarding the parenting coordinator (or PC), the parties disagree both as to the PC's authority as it relates to final decision-making and as to the scope of the decisions, she can be involved in. First, as to decision-making, the parties disagree as to the interpretation of the Parenting Coordinator provisions. The Mother contends the parenting coordinator has final decision-making authority. The Father, on the other hand, contends that the parenting coordinator does not have final decision-making authority. Second, as to scope, the parties are not in agreement as to whether the PC has decision-making authority related to "activities or expenses."
The parties likewise cannot agree as to the interpretation of the add-on cap provisions of their agreement. This was a major issue at oral argument. The parties' positions are quite simple but completely incompatible with each other. The Father contends the cap for in total between both parents is $10,000.00 per year on combined costs of extracurriculars and camp. On the opposite end of the spectrum, the Mother contends that the cap is $10,000.00 per parent, thus between both parents the cap would be $20,000.00 according to the Mother's interpretation.
Apart from the principal issue of contract interpretation, the Mother is seeking a modification of custody to award her final decision-making authority. The Father contends the frustration that the Mother has had with the decision-making process is not sufficient "change in circumstances" to warrant a modification.
A. INTERPRETATION OF THE STIPULATION
This Court is routinely called upon to resolve disputes as to the interpretation of marital settlement agreements. The Court is guided in the first instance by the confines of the agreement. The rules are simple,
[a] stipulation of settlement which, like the one at issue here, is incorporated but not merged into a judgment of divorce, is a contract subject to the ordinary principles of contract construction and interpretation. These rules provide that "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms... [and] courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing." (Keller-Goldman v Goldman, 149 A.D.3d 422, 424 [1st Dept 2017] citing, Bernstein v Novani, 131 A.D.3d 401, 405 [1st Dept 2015]).
In deciphering the meaning of the terms within the agreement, the Court of Appeals has counseled further that, "all provisions of the agreement may be considered, and if it shall be found in such examination that the interpretation claimed is repugnant to the scheme of the settlement and to other parts of the instrument, and is opposed to the paramount intention, as disclosed by the agreement as a whole, then the court is to seek an interpretation which shall reconcile the particular clause with such general purpose." (Spofford v Pearsall, 138 NY 57, 66 [1893]).
I. Decision-Making Provisions
The parties stipulated in their original custody agreement to joint-decision making with the following consultation protocol,
Except in cases of an emergency, in the event of a Major Decision, the party having awareness that a Major Decision is required ("the Initiating Parent") shall notify the other via the parenting app (Talking Parents or Our Family Wizard) ("the Consulting Parent") of the substance of the major decision to be made including, if applicable, the sum and substance of his or her position, or proposed course of action on the major decision to be made and the information he or she is relying upon in connection with same. The other party shall confirm his or her receipt of such communication as soon as reasonably possible upon receipt, but in no way longer than twelve (12) hours absent a party's impairment. The Consulting Parent shall respond in the parenting app, within one week thereafter (unless such a decision must be made in less than a week or if a party is impaired, in which case a response will be made in less than a week) including, if applicable, his or her agreement or the sum and substance of his or her alternate position or alternate proposed course of action, if any, on the major decision to be made. In the event the Consulting Parent does not provide a response to the aforesaid email via the parenting app within one week of sending same, the Initiating Parent shall have the right to proceed without further consultation and the Consulting Parent will be deemed to have consented to the suggestion or proposal made by the Initiating Parent and the Initiating Parent's proposal will be implemented. However, the Initiating Parent shall provide a final email message via the parenting app that this decision is the decision that is being made along with all information associated with same if not provided in previous correspondence. The terms of this paragraph shall be known as the "Consultation Process."
In the event of a disagreement during the "Consultation Process," the parties original custody agreement provided,
The parties shall confer with and seek a recommendation from an agreed upon parenting coordinator [...] If either party disagrees with the recommendation of the Parenting Coordinator, that party has the right to make an application to a court of competent jurisdiction to seek court intervention for an adjudication concerning the issues in dispute.
Importantly, this provision was subsequently modified in the parties' Stipulation of Settlement to provide, in relevant part,
The parties shall confer with and seek a recommendation from a parenting coordinator [...] If after consulting with the Parenting Coordinator the parties cannot agree, then the Parenting Coordinator will make a recommendation, and as long as one party agrees, the decision shall be followed except that each party reserves the right to return to for determination [pursuant to the judicial intervention provisions in the original custody agreement].
Here, the parties' principal dispute as to the role of the parenting coordinator is resolved by the "clear and unambiguous" terms of the agreement. The parties' agreement provides that the Parenting Coordinator does in practical effect make the final decision, so long as one party agrees with them. The terms are clear that after the traditional joint custody "consultation process," and if a joint decision cannot be reached, then the PC is enlisted to make a recommendation. Importantly, this recommendation must be "followed" so long as "one party agrees."
The juxtaposed language that provides for judicial intervention only "reserves" the non-agreeing parent's right to seek judicial intervention. The use of the term "follows" combined with the requirement of one parent's acquiescence demonstrates the agreement provides that the recommendation of the parenting coordinator after an impasse is binding so long as one parent endorses the recommendation. This excepting language merely means that the parenting coordinator's recommendation is not insulated from judicial review; however, it still must be "followed" until judicial action to the contrary. Indeed, the following unmodified provision in paragraph 7(b) makes clear that the party is reserving the right to "judicial intervention for an adjudication concerning the issue in dispute." Critically, this judicial intervention does not stay the decision because the language ensures it is followed until judicial action is taken to the contrary. Accordingly, the Mother's interpretation is correct in this respect.
Indeed, reading the provision as interpreted by the Father, namely, that the exception provision would extend the impasse would be contradictory to the purpose the parties entered into the agreement - the best interests of the children. Allowing this exception to function as a stay would deprive the parents of the ability to make necessary and timely decisions on behalf of the Child. Furthermore, paragraph 6 of the party's original custody agreement makes clear that the parties sought to make these decisions in a time-conscious manner. Endorsing the Father's argument would run contrary to the parties' clear intent in entering into the agreement and would result in potential harm to the children due to delayed decision-making. Thus, the Father's interpretation is rejected because it would result in absurdity when reference is made to the intent of the parties and the language of the linked provisions. (See Pearsall, 138 NY at 66).
Thus, the Mother's request to have the Father follow the decision-making provisions is GRANTED to the extent that the Father shall be bound by and is directed to follow the protocol as clarified herein. Likewise, the Father's requests for enforcement as to the Mother not making unilateral decisions is GRANTED to the extent that she must also abide by the terms clarified herein. However, the branch of the Father's Cross-Motion seeking the parties not utilize the Parenting Coordinator as the final decision-maker is DENIED as discussed further below.
II. Extracurricular Selection and Scheduling Provisions
Like the role of the parenting coordinator, the parties can likewise not agree on the scope of the coordinator's authority. The modified settlement agreement provisions and original custody agreement both make clear the parenting coordinator is only invoked in making "major decisions." Luckily for the parties, in drafting, they provided a clear definition for major decisions that this Court must give effect to resolve this interpretation question. The relevant decision-making issue to be interpreted is whether or not the Parenting Coordinator has the authority as to decision-making for activities and expenses.
The custody agreement provides, in relevant part,
The selection of and participation in extracurriculars (although not a major decision) (school related and those unrelated to school)[...] Further, no party shall unilaterally schedule a child's activity to interfere with the other's parenting time and permission shall not be unreasonably withheld. If, however, a party does schedule a child for an activity which the other party has not consented that the child be enrolled, the other party shall bear no financial responsibility to same.
Here, the parties plainly agreed that the children's participation in extracurricular activities was "not a major decision." Thus, the parenting coordinator has no authority as to decisions related to "participation in extracurriculars." The language is broad covering both "school-related and those unrelated to school" which encompasses both school extracurricular and camp activities. Thus, the parenting coordinator has no authority as to issues of camp and extracurriculars. Likewise, by having no authority in those areas, the parenting coordinator also has no authority as to expenses related to camp and school extracurriculars. Accordingly, the branch of the Father's Motion requesting the Parenting Coordinator not be utilized as the final decision-maker on these issues is GRANTED because the Parenting Coordinator does not have authority over the children's extracurriculars or the expenses associated therewith.
Relatedly, the Father makes a request that the Mother be prohibited from scheduling the children's activities during his parenting time, absent his consent. The agreement plainly provides for this; thus the Father's request is GRANTED to the extent that both parties are directed to not schedule the Children for activities during the Father's parenting time.
However, pursuant to the agreement, the remedy for this is not to permit the aggrieved parent to disenroll the Children; rather, it is to shift the cost of the activity. Thus, the Father's request is also awarded in that any extracurricular activity the Mother has scheduled during his parenting time shall be the sole cost of the Mother; however, the Father may not remove the Child or otherwise make the Child unavailable for said activities due to the clear decision in the agreement by the parties that the penalty for this conduct is fee shifting not disenrollment.
Given the fact that the agreement has a separate, and frankly overly convoluted, protocol for extracurriculars, this Court urges the parties to stipulate as to a protocol for these decisions that is more clearly defined. Indeed, it may be beneficial to have them treated as "Major Decisions."
III. Cap on Add-Ons
The parties are on opposite ends when it comes to the issue of the cap on add-ons provided in the agreement. As noted supra, the Mother interprets the agreement to say, in essence, each parent is responsible for $5,000.00 per year per child for both camp and extracurriculars - resulting in a parental obligation of $20,000.00 per year per parent. The Father reads this provision as providing for $10,000.00 in total because those $5,000.00 sums are meant to be split between the parents 50/50 rather than be independent obligations on each parent as posited by the Mother.
The child support provision of the settlement agreement related to this issue provides clearly and plainly,
[T]he parties shall share so that the Wife shall pay 50% and the Husband shall pay 50% of the expense: [...] (ii) summer camp/programs up to a $5,000.00 annual cap per child until each child turns sixteen; (iii) extracurricular activities up to $5,000.00 annual cap per child until each graduates from high school, except that the parties will consider reasonable extracurricular activities above the cap consent shall not be unreasonably withheld.
Here, the Father's interpretation is the interpretation supported by the plain language of the agreement. The prefatory language of the terms related to the cap makes clear that the expenses are shared and that the share of those expenses is 50/50 between the parties. Accordingly, the Father's request related to the cap is GRANTED, and the Mother's request as to the cap is DENIED.
IV. Financial Aid Records
The parties here agreed to joint custody and it is inherent in roles as joint custodians that there be a free flow of information and documents necessary to carry out the Children's best interests. The Mother's request for direction that the Father cooperate in the financial aid process is reasonable and in line with the parties' divorce provisions. Specifically, the provision as to the parents' respective right to educational documents provides, "[e]ach parent shall be entitled to complete, detailed information from any teacher or school giving instruction to the Child, or at which the Children may attend, and to be furnished with copies of all reports given by teachers or school to the other parent." When this provision is read in connection with the duty of appraisal as to the Children's information, the agreement clearly demonstrates an intent that the parties will cooperate in the financial aid process.
As to the financial penalty sought by the Mother and the strict time frame of seven (7) days, the Court finds these requests unreasonable and not supported by the agreement. Accordingly, the Mother's request for financial aid records is GRANTED to the extent that the Father is directed to cooperate in a reasonable time frame, not to exceed fourteen (14) days; and the Mother's request is also DENIED in that the Court will not insert a financial penalty into the agreement the parties did not insert during drafting under the guise of interpretation.
B. MODIFICATION OF DECISION-MAKING AUTHORITY
The Mother requests this Court modify custody so as to award her final decision-making authority. The Father opposes and argues there is no change in circumstance shown to warrant a modification of the parties' custody agreement.
It is well-settled that "[w]here the parents enter into an agreement concerning custody it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interest of the child." (McNally v McNally, 28 A.D.3d 526, 527 [2006] citing, Smoczkiewicz v Smockzkiewicz, 2 A.D.3d 705, 706 [2d Dept 2003]).
The Court of Appeals has made clear the importance of affording weight to prior custody agreements,
The priority which is accorded to the first award of custody, whether contained in court order or voluntary agreement, results not from the policy considerations involved in res judicata (which permits change in custody decrees when warranted by the circumstances), so much as from the conceptions that stability in a child's life is in the child's best interests and that the prior determination reflects a considered and experienced judgment concerning all of the factors involved. (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94 [1982]).
The Court must first determine if there is a change in circumstances warranting modification before it can reach the issue of the Child's best interests or whether a modification is warranted. (See e.g., D.G. v M.G., 83 Misc.3d 1218 [A] at *3 [Sup Ct, NY Cnty June 17, 2024][Chesler, J.]["For a movant to succeed on an application for a modification of custody they must pass two hurdles. First, that there is a change in circumstances that warrants a modification of custody. Second, that such modification is in the child's best interests. The movant cannot reach the second hurdle without passing the first."]; Matter of Kevin F. v Betty E., 154 A.D.3d 1118, 1119-1120 [3d Dept 2017]["In other words, a court may consider a child's best interests only if this threshold burden is met."]). Like D.G., as to the issue of final decision-making "[t]his case is one where the first hurdle was not passed." (Id.).
Principally, the Mother failed to specifically argue there was a change in circumstances. However, taken as a whole, the change in circumstance asserted is that of parental discord and frustration with the parenting coordinator. This cannot be argued to be a change in circumstances as this exact type of conflict - the debate over final decisions and the input of the parenting coordinator - was accounted for by the parties' agreements. Likewise, while sometimes conflict will rise to the level of requiring a change in custody; the decision-making issues here are nowhere near such a level of volatility that this Court can justify subjecting the Children to custody modification proceedings. (Foley v Foley, 52 A.D.3d 773, 774, 861 N.Y.S.2d 386 [2d Dept 2008][Holding conflict between parents did not constitute a substantial change in circumstances.]; see also, David W. v. Julia W., 158 A.D.2d 1, 6-7 [1st Dept 1990] ["To automatically grant the noncustodial parent a hearing would simply facilitate a disgruntled party in harassing his or her former spouse, compelling the latter to expend considerable time, money and emotional anguish in resisting the loss of custody. Certainly, a person who seeks such a change must make some evidentiary showing to warrant a hearing."]). Accordingly, the Mother's request for modification as decision-making authority is DENIED.
Despite this denial, after reviewing the affidavit of the Mother, the Parenting Coordinator and the specific circumstances of this case, the Court does find there is a sufficient basis to warrant a modification to the extent that the parties are directed to enlist a new parenting coordinator. The affidavit of the parenting coordinator demonstrates an impaired bias against the Father upon review. Likewise, the Parenting Coordinator has demonstrated that she is not aware of the parameters of her role and has engaged, with vigor, issues outside her command. The parenting coordinator is simply too involved and should not be spearheading or developing decisions or plans for the Children as she has admitted to doing - that is the role of the parents.
The representations made by the Father during the oral argument further demonstrate that the current parenting coordinator that is doing more harm than good. Thus, this Court does find it appropriate under these circumstances to direct the parties to select a new parenting coordinator. (See DRL § 241[1][a]["In any action brought [...] the court [...] shall enter orders for custody and support as, in the court's discretion, justice requires, having regard for the circumstances of the case and of the respective parties and to the best interests of the child."]; Loggia v Verardo, 167 A.D.3d 612, 613 [2d Dept 2018]["While 'custody determinations should '[g]enerally' be made 'only after a full and plenary hearing and inquiry,' this general right is not an absolute. A hearing is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody."] citing S.L. v J.R., 27 N.Y.3d 558, 563 [2016]; N.S. v T.S., 2024 NY Slip Op 50604[U] at *11-12 [Sup Ct, Nassau Cnty May 20, 2024] [Dane, J.]). The Court likewise finds this direction to be within the Children's best interests and the interests of justice for this family because it is evident that it is invariably in the Children's best interests to have, whenever possible, parents who can civilly and jointly reach major decisions. (See generally, Matter of Claflin v Giamporcaro, 75 A.D.3d 778, 779-780 [3d Dept 2010][Holding a change in circumstance requiring modification exists where parents cannot reach agreements related to children's best interests.]). Accordingly, the Mother's request for modification is GRANTED to the extent that the parties are directed to select a new parenting coordinator.
C. COUNSEL FEES
The Father moves under his cross-motion for an award of $10,000.00 in counsel fees. The Father solely moves for fees under 22 NYCRR § 130-1.1; thus, seeking this Court sanction the Mother and use that as the basis for the fee award.
The Rule provides three definitions for frivolous conduct. 22 NYCRR 130-1.1(c). Specifically, "conduct is frivolous if: (1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false." (Id.) In determining whether conduct is frivolous the Rule directs,
the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party. (Id.).
The Court notes in the first instance that the Mother moved under this entire motion sequence pro se. Her interpretation of the agreement was at times attenuated from the text, but it did not become frivolous. The same can be said for the Father's asserted interpretation as to final decision-making authority. Indeed, the specific circumstances here demonstrate the Mother's application bore merit. The parties were in fact at a deadlock and the parenting coordinator was not remedying the issue. The Mother's decision to seek judicial intervention was not an abuse of the judicial process in any sense and was by no proof undertaken in bad faith. Simply, the Court does not find the Mother's conduct was frivolous. Absent a finding of frivolous conduct, sanctions in the form of counsel fees are improper. (22 NYCRR 130-1.1[a]). Accordingly, the Father's request for counsel fees is DENIED.
This constitutes a decision and order of this Court on Motion Sequence 007.