Opinion
Mot. Seq. Nos. 13 [1] 14 [2] [3] 16 [4]
08-16-2023
Faina P., Plaintiff, v. Alexander S., Defendant.
Brian D. Perskin, Esq., Gabrielle H. Hagege, Esq. Attorney for Plaintiff Alexander S., Esq. Defendant, pro se Brad Nacht, Esq. Attorney for the Child.
Unpublished Opinion
Brian D. Perskin, Esq., Gabrielle H. Hagege, Esq. Attorney for Plaintiff
Alexander S., Esq. Defendant, pro se
Brad Nacht, Esq. Attorney for the Child.
Jeffrey S. Sunshine, J.
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ #461-466; #475-483; #492-509 #514-523; #525-538; #541-543; #544-547; #548-550
Petition/Cross Motion and
Affidavits (Affirmations) Annexed
Opposing Affidavits (Affirmations)
Reply Affidavits (Affirmations)
PROCEDURAL HISTORY
This is another post-judgment application in a protracted series of post-judgment applications. Defendant has filed a plethora of post-judgment applications since the judgment of divorce was entered in the Office of the Clerk of the County of Kings on March 3, 2020. The unifying theme of defendant's numerous applications is his desire to "vacate" - retroactively - his child support obligation as agreed to in the parties' 2019 stipulation of settlement related to their young child of whom they share custody.
This post-judgment litigation began with plaintiff filing a post-judgment application seeking contempt against defendant for failure to pay any direct child support for more than a year without her consent or court order. In response, defendant has filed numerous applications seeking, inter alia, to retroactively "terminate" his child support obligation as agreed to by the parties on consent in their stipulation of settlement dated November 12, 2019 [NYSEF #7], to modify his basic child support and now to seek child support from the plaintiff. Plaintiff has filed responsive applications seeking, inter alia, counsel fees related to defendant's applications. Based on the allegations raised by defendant in his applications, plaintiff has sought a change of custody.
The parties executed two stipulations on November 12, 2019 - one resolving custody and parenting time [NYSCEF #6] and the other resolving finances and all ancillary issues between them [NYSCEF #7] - these stipulations were subsequently incorporated but not merged into a Judgment of Divorce signed on February 28, 2020 [NYSCEF #5]. An amended judgment of divorce was signed on June 2, 2023 [NYSCEF #554] and entered in the Office of the Clerk of the County of Kings on June 14, 2023 [NYSCEF #555] after motion practice and the Court granting leave to amend in a written decision dated March 30, 2023.
There is one child of the marriage: a son, Z, who is (7) years old (DOB December 2015). The parties share joint legal custody and a shared (50/50) parenting schedule pursuant to their stipulation of settlement. Pursuant to the March 30, 2023 decision and order, plaintiff's application seeking sole custody was referred to an evidentiary hearing which began on August 4, 2023 and is on-going.
Plaintiff is employed as a sales administrator. She is represented by private counsel. Defendant is an attorney licensed to practice in New York State who is employed by a New York City law firm. He appeared self-represented throughout most of this post-judgment litigation.
The Court has made extensive records on each court appearance as to the right to counsel and the risks of proceeding self-represented. The Court has found that the defendant is not eligible for the assignment of counsel.
This Court has written numerous extensive decisions related to defendant's repeated applications for a downward modification including the decision dated April 18, 2022 [NYSCEF #101] finding him in contempt and the decision and order dated March 30, 2023 [NYSCEF #441] inter alia denying his first application for leave to renew his application for a downward modification which was previously denied. Those decisions must be read in conjunction with this decision for a full procedural history of this post-judgment litigation.
April 17, 2023 Court Appearance: Appointment of an Attorney for the Child
In the March 30, 2023 decision, the Court scheduled April 17, 2023 to "hear oral argument on whether appointment of an attorney for the child is appropriate..." At the court appearance on April 17, 2023, defendant sought an adjournment to obtain counsel. His application was granted and the case was scheduled for May 9, 2023 [ see written order dated April 17, 2023; NYSCEF #447]. At the April 17, 2023 court appearance, the Court directed both sides to provide the names of three (3) proposed attorneys on the Second Department approved list for possible appointment as attorney for the child. Both parties provided lists of proposed attorneys for the child.
Despite his representation on April 17, 2023 that he sought an adjournment to obtain counsel, on May 2, 2023 [NYSCEF #451] defendant filed a letter, self-represented, seeking permission to file for additional relief. No opposition to defendant's request for permission to file was submitted by plaintiff. Permission was granted by order dated May 3, 2023 [NYSCEF #456]. Defendant filed his proposed order to show cause, as permitted by the order dated May 3, 2023, on May 8, 2023 [NYSCEF #461].
This is not the first-time defendant has sought an adjournment claiming he was going to retain counsel only to wait until the eve of the next scheduled court appearance to file orders to show cause. This litigation tactic has delayed this process and has resulting in numerous, at times overlapping, applications seeking duplicative relief requiring detailed and lengthy written decisions to parse out the relief and arguments. Defendant has criticized the length of the decisions necessitated by is pattern of application filing. The Court notes that despite his numerous representations that he was seeking adjournments to obtain counsel, as of July 2023, no notice of appearance of any attorney has been filed for defendant. The evidentiary hearing is scheduled for August 4, 2023. The defendant is cautioned not to wait until the eve of that hearing to attempt to hire counsel.
May 9, 2023 Court Appearance
During the Court appearance on May 9, 2023 morning, the Court indicated that chambers staff had contacted one of the three (3) suggested names submitted by the Defendant and that an attorney was willing to accept appointment as the attorney for the child; however, by 1:53 p.m. that same afternoon, that attorney notified chambers that he was unable to accept the appointment as the defendant had consulted with him. The full account is detailed in the written court order dated May 9, 2023 [NYSCEF #467]. Thereafter, the Court appointed Brad Nacht, Esq. as the attorney for the child by written order dated May 11, 2023 [NYSCEF #472]. The Court signed defendant's order to show cause and scheduled it for May 31, 2023, a date selected on the record on consent of the parties. The transcript of the May 9, 2023 court appearance is NYSCEF #483.
Defendant's Order to Show Cause dated May 9, 2023 [Mot. Seq. #13; NYSCEF #466]
Defendant moved by order to show cause dated May 9, 2023 seeking the following relief:
A. Pursuant to Jud. Law 14 and 22 NYCRR 100.3 (c) (1), seeking recusal of the Honorable Jeffrey Sunshine from this case;
B. Pursuant to DRL 240, appointing a forensic evaluator given the custody dispute in this case;
C. Pursuant to CPLR 3124 and 3126, compelling Plaintiff to provide the documents sought in Defendant's April 11, 2023 Notice for Discovery and Inspection;
D. Ordering all parties to share 50/50 the cost of all Court transcripts in this case;
E. For such other and further relief as this Court may deem just and proper under the circumstances."
The next day, on May 10, 2023, defendant filed another correspondence seeking permission to file for additional specific relief and on May 11, 2023 plaintiff's counsel filed seeking permission to file an order to show cause for specific relief. By written order dated May 17, 2023 the Court granted both applications [NYSCEF #473].
Plaintiff's Order to Show Cause dated May 22, 2023 [Mot. Seq. #14; NYSCEF #476]
On May 22, 2023, plaintiff's counsel filed an order to show cause, pursuant to the permission granted in the Court's order dated May 17, 2023 [NYSCEF #473] seeking the following relief:
Based on the duplicative applications filed, the Court took the extraordinary measure of prohibiting the parties from filing further applications without first seeking permission.
"A. Pursuant to C.P.L.R. Section 2304 and C.P.L.R. 3103, quashing and granting a protective Order with respect to the Subpoena Duces Tecum served on [NAME REDACTED] by Defendant for the disclosure of financial documents related to Faina [P.]; and
B. Awarding such other and further relief as this Court deems just and proper."
Defendant Order to Show Cause dated May 22, 2023 [NYSCEF #523]
Defendant's proposed order to show cause [NYSCEF #484] exceeding the permission granted in the Court's May 17, 2023 order was rejected by written order dated May 24, 2023 [NYSCEF #511].
On May 24, 2023, defendant filed an order to show cause, pursuant to the permission granted in the Court's order dated May 17, 2023 [NYSCEF #473] seeking the following relief:
"A. Pursuant to CPLR 2221(e), leave to renew the Court's April 18, 2022 and March 30, 2023 Decisions and Orders, based on Defendant's recent discovery of Plaintiff's $250,000 inheritance;
B. For such other and further relief as this Court may deem just and proper under the circumstances;"
Oral Argument on Motion Sequences #13, #14 & #16
Motion Sequence #15 was defendant's proposed order to show cause that the Court declined to sign as exceeding the scope of the permission granted in the May 17, 2023 order.
The Court heard oral argument on the open motions on May 31, 2023. Plaintiff appeared represented by counsel; defendant appeared self-represented and the attorney for the child made his first appearance since being appointed.
Exclusion of Alleged Fact Witness
Plaintiff's counsel made oral application that if the Court was going to hear oral argument on the defendant's application for the Court to recuse that the Court should exclude any fact witnesses from the court room. Defendant argued that there was no authority for the Court to "close" the courtroom. Plaintiff's counsel argued that excluding a fact witness (especially one who had filed an affidavit in the case related to the issue before the Court) was not closing the courtroom but merely excluding a specific fact witness. The attorney for the child took no position. The Court, noting that there is a difference between excluding a potential witness and closing a courtroom, found that there was no need to exclude any alleged fact witness inasmuch as there was "no basis for an evidentiary hearing on the issue of recusal" [NYSCEF #558, p. 10] nor was there a basis to close the courtroom.
Affidavit of non-party dated May 16, 2023 [NYSCEF #474].
Defendant's Objection to Attorney for the Child Meeting with the Child
Defendant objected that the attorney for the child had met with the child as scheduled by the plaintiff. The attorney for the child represented that plaintiff had paid her share of his retainer but that defendant had not paid his share. The attorney for the child represented that on May 16, 2023, plaintiff contacted him to arrange for him to meet with the child so he reached out to the defendant by e-mail to introduce himself but did not hear from defendant until May 26, 2023. The attorney for the child, Mr. Brad Nacht, stated "I didn't hear back from [defendant] so I went ahead and communicated with [plaintiff] and made arrangements to meet with my client" [NYSCEF #558, p. 5].
Defendant represented on the record that he viewed the plaintiff arranging for the child to meet with the attorney for the child as "another example" of what he views as plaintiff making unilateral decisions related to the child [NYSCEF #558, p. 6].
The Court's appointment order dated May 11, 2023 speaks for itself in that it directs the parties to "immediately contact" the attorney for the child to schedule the initial interview between the child and the attorney for the child according to the attorney for the child and the plaintiff did so. Furthermore, at the prior court appearance defendant requested and supported appointment of an attorney for the child.
Recusal
After hearing oral argument on May 31, 2023, the Court denied defendant's application for recusal on the record (relief requested in "A"). The Court has searched its conscious and believes it can be fair and has no personal animus to any party and that defendant had not shown that there is any basis for recusal.
The Court found that the case issued out of a Justice Court of Village of Westbury, Nassau County that defendant relied on in his application for recusal had no precedential authority over the Supreme Court. People v T&C Design, 178 Misc.2d 971 [Nassau County, 1998]. Defendant also contends that the length of the Court's prior decisions is evidence of an alleged prejudice against him citing the page-lengths of those prior decisions in support of his proposition.
Court-Directed Transcripts: Shared Cost Application
On the record the parties consented to the Court ordering the parties to share the cost (50/50%) of transcripts of the oral argument subject to reallocation (relief requested in "D"). The Court denied the defendant's application to make this allocation of the cost of transcripts nunc pro tunc. The Court noted that it made no determination as to payment of the trial transcripts and reserved onthat issue for further application when appropriate [NYSCEF #558, p. 39-40].
Balance of Relief Open After May 31, 2023
The relief requested in motion sequence #13, items B and C remain open before this Court and the relief requested in motion sequence #14 and #16.
The transcript of the May 31, 2023 oral argument was provided on June 28, 2023 and the balance of the motions were marked sub judice on that date [NYSCEF #558].
Defendant's Application for a Forensic Evaluation of Plaintiff [Mot. Seq. #13]
Defendant previously sought appointment of a forensic evaluation of plaintiff in motion sequence #12. Now, in motion sequence #13 he again seeks the same relief. This very application in #12 was denied in the written decision and order dated March 30, 2023. Now, in his very next application, defendant raises no new allegations related to that issue nor has the attorney for the child made any application for a forensic evaluation of the parties in this matter at this time.
While parties to a contested custody dispute place their physical and mental condition at issue (see Rosenblitt v. Rosenblitt, 107 A.D.2d 292 [2 Dept.,1985], the Court has discretion to limit disclosure to avoid the potential for abuse (see Lohmiller v Lohmiller, 118 A.D.2d 760 [2 Dept., 1986]. Here, defendant has raised no fact or allegation sufficient to warrant such an evaluation of the plaintiff. The application for appointment of a forensic of the plaintiff alone is denied at this time.
The Court fully addressed defendant's request for appointment of a forensic [NYSCEF #441] to evaluate the plaintiff in the written decision and order dated March 30, 2023 [pp. 53-58] and that decision must be read in conjunction with this decision.
Leave to Renew: Based on Allegedly "Newly Discovered" Inheritance
Defendant contends that plaintiff "perpetrated a fraud upon the Court" by filing an enforcement application due to his non-payment of child support: he contends that plaintiff no longer "needed" child support from him pursuant to the terms of the parties' stipulation of settlement because she had recently inherited money when her mother passed away in 2021. It is undisputed that defendant stopped paying child support in 2020.
The Court has previously noted in written decisions that the parties' stipulation of settlement specifies that the basic child support plaintiff agreed to accept from defendant was already a downward deviation and that she also waived maintenance from defendant despite, at the time, earning less than half of what he earned all while the parties agreed, again despite the disparity of incomes, to share (50/50%) certain add-on expenses.
Defendant contends that plaintiff had no legal basis to seek to enforce his child support obligation in 2021 because, he contends, her combined "income" for 2021 should be considered her employment income of $48,000 and the $250,000 inheritance she received. Based on his proposition, defendant contends that plaintiff's "income" was $298,000 in 2021 while his was $85,000 in 2021. As such, he contends that instead of seeking to enforce the basic child support obligation, that plaintiff should have been paying him child support.
The Court notes that defendant continue to assert that he earned $85,000 in 2021 while this Court has, in the written decision dated March 30, 2023 (see pages 18-19) detailed that defendant earns more than $93,000 [NYSCE #441]. Despite this, defendant continues to misrepresent his income for purposes of calculating child support pursuant to the Child Support Standards Act because he persists in impermissibly deducted his voluntary contributions to his retirement accounts to calculate this income for purposes of calculating basic child support pursuant to the Child Support Standards Act.
Initially, this Court noted in prior decisions defendant's misplaced belief that his income for purposes of calculating his child support is based on his income after deductions for voluntary retirement contributions. The Court once again denies defendant's characterization of his income as what remains after his retirement contributions.
The statute is clear: income for purposes of calculating child support obligations is gross income prior to elective, voluntary contributions to retirement and deferred compensation plans (DRL 240(1-b)(b)(5)(iii) which provides as relevant here:
to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred [emphasis added]
Defendant argues, in effect, that the apparently one-time inheritance of $250,000 that plaintiff received in 2021 automatically voided the parties' stipulation of settlement related to child support without need for any further agreement of the parties or court order granting a downward modification. Furthermore, defendant contends that this inheritance automatically resulted in what amounts to an immediate and legally enforceable change to the parties' stipulation of settlement so that instead of him paying child support to plaintiff that she was now the monied parent and "it was the plaintiff who owed child support to the defendant because of the 50/50 custody arrangement" [NYSCEF #558, p. 20].
Defendant's proposition combines two arguments: he argues 1) that the Court should recalculate the basic child support award nunc pro tunc to the time when he unilaterally stopped paying child support [2020] prior to any application for downward modification based on his characterization of the parties' incomes, and 2) that the inheritance in 2021 ipso facto voided his contractual obligation to pay child support pursuant to the terms of the stipulation of settlement by operation of law.
Defendant also appears to argue that he is entitled to a modification of the child support obligation based on the terms in other people's stipulations of settlement. Defendant submitted copies of stipulations of settlements with affidavits from non-parties ["friends"], in effect, to prove that the Court should void the parties' child support provision in their stipulation of settlement because, he contends, other people have stipulations of settlement that are different from the one he entered into with plaintiff. The terms of stipulations of settlement that other people entered into have no precedential authority over the Court and the fact that other people may have entered into other financial agreements is not a basis to vacate the terms of the parties' stipulation of settlement.
While one of the parties involved in these other divorce actions may have shared these stipulations of settlement with defendant, that individual's "consent" did not grant "consent" of the other non-parties (the other spouse) and the personal and confidential information of the children involved in those other cases.
Defendant's legal theory would, if adopted as a basis for voiding legal contracts, result in making financial contracts nebulous and constantly evolving documents that are easily manipulated and that are largely unenforceable. Applying this proposed theory, a party could unilaterally change the terms of any stipulation of settlement unilaterally by voluntarily decreasing his/her income. This theory would utterly undermine the very basis of contract law and result in unpredictability which is the antithesis of the law of contracts which is predicated on the right of parties to negotiate and enter into terms that are binding and enforceable. Defendant offered no statutory, case law or legal doctrine that would support his proposition that an inheritance would automatically "void" a valid and enforceable stipulation of settlement without further action nor is the Court aware of any such legal principal.
As previously detailed in this Court's March 30, 2023 decision:
The Court of Appeals of the State of New York has ruled that arrears accrued prior to an application for modification of child support is not retroactive and noted that "[u]nder the present enforcement scheme, then, '[n]o excuses at all are tolerated with respect to child support'" (Dox v Tynon, 90 N.Y.2d 166, 173-174 [1997]). Where a party seeks to avoid making payment, that party is required to make an affirmative request for relief (id. at 174).
A party seeking a downward modification has the burden of seeking such a modification. Here, the record reveals that defendant engaged in self-help rather than seeking the modification he believed he was entitled to and the Court has thoroughly addressed that in the prior decisions.
Defendant entered into a contract with the plaintiff when they entered into the stipulation of settlement dated November 19, 2019. Defendant's apparent perception that the law of contracts and contract enforceability does not apply to a stipulation of settlement resolving a divorce action is misplaced. The caselaw is clear: "a stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principals of contract interpretation" Toscano v Toscano, 153 A.D.3d 1440, 1442 [2 Dept.,2017]). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Matthews v Roe, 193 A.D.3d 919, 147 N.Y.S.3d 597, 599 [2 Dept.,2021]). The Court cannot rewrite the terms of the clear and unambiguous terms of the parties' agreement (see Abramson v Hasson, 184 A.D.3d 768 [2 Dept.,2020]).
Contrary to defendant's contention, financial terms of stipulations of settlement are not constantly evolving moving targets: stipulations of settlement are not "guidelines" that one party can modify absent agreement of the parties or modification based on the statutory basis for modifying child support awards contained in Domestic Relations Law 236(B)(9)(b)(2)(ii) which this Court has previously detailed in the written decision dated March 30, 2023 [NYSCEF #441].
Defendant's proposition that there is a legal basis for him to unilaterally self-determine that he was entitled to a downward modification retroactive, that he is entitled by law to stop paying his child support based upon his self-determination and then retroactively argue that he was entitled to a downward modification retroactive to the date of his unilateral decision is not supported by the law.
Newly Discovery Evidence: Notice Date of Inheritance
At oral argument defendant represented that he "finally found this information" about the plaintiff's life insurance policy only in May 2023 because, he contends "[plaintiff] and her attorneys were hiding this information" [NYSCEF #558, pp. 21-22]. As such, he contends, he is entitled to renew the March 30, 2023 decision and order related to his application for a downward modification based on plaintiff receiving inheritance because he did not know about the inheritance until May 2023. Defendant alleges that he is entitled to renew the prior decision and order because he had no knowledge that plaintiff received an inheritance in April 2021 prior to submission of the prior applications. At oral argument, defendant represented that "[h]ad the plaintiff declared the inheritance in February 2021, we would have been able to conduct discovery then."
Defendant contends that the Court delayed in issuing the decision on his initial application for renewal; however, the timing of the decision and order was a result of the numerous applications - related to overlapping issues - filed by defendant. As noted in the March 30, 2023 decision and order, the applications were not fully submitted and sub judice until February 17, 2023 when the transcripts of the oral arguments were submitted. The lengthy 71-page decision and order resolving the five (5) complex and intertwined motion sequences before the Court was issued on March 30, 2023, just six (6) weeks later. The Court notes that the procedural history of defendant's delay of the transcript is detailed in that March 30, 2023 written decision and order on pages 5-6 [NYSCEF #441]. Defendant's representation that his application was delayed by the Court is not supported by the record. Further, at noted, the numerous applications filed by defendant include numerous applications seeking the same or similar relief resulted in the Court issuing a restriction on filing further applications without Court permission.
The Court notes that despite his representation that he did not know about the inheritance until May 2023, the defendant references the inheritance in his prior application and the Court addressed the issue in the prior decision.
Plaintiff contends that defendant had notice of the inheritance as of February 9, 2022 and notes that defendant raised the issue of the inheritance in his prior application to renew and reargue. Plaintiff contends that it is disingenuous for defendant to wait from February 2022 until May 2023 to subpoena records related to the inheritance and then - after his prior application for renewal and re-argument were denied - to attempt to use those late-subpoenaed records as a second attempt to renew his prior application. Plaintiff contends that this is another attempt by defendant to "torture" her for seeking to enforce the basic child support terms of the parties' stipulation of settlement.
Contrary to defendant's representation that he did not know about the inheritance until May 2023, plaintiff filed an updated affidavit of net worth dated February 9, 2022 [NYSCEF #95]. On page 15 of that affidavit of net worth she lists this inheritance with a sum of "$250,014.15" [NYSCEF #95, p. 14] together with the name and address of the insurer and the policy number. Defendant's contention that he, in effect, had no knowledge of the inheritance until after the March 30, 2023 decision is also belied by the record and in fact this Court addressed the issue of the inheritance in that decision.
Plaintiff's counsel also contends that defendant's application for right to renew is procedurally defective because he did not attach his prior motion papers, the Court's decision, the subpoena he obtained or the subpoena responses and that defendant is not "operating in good faith and not really following the CPLR with regard to subpoena" because no notice of the subpoena was provided to plaintiff until after defendant received responses to the subpoena.
Plaintiff contends that:
Defendant is hell bent on filling [ sic ] frivolous motions and threatening to pull my friends and family into this litigation, all in an effort the make the costs of litigation so onerous as to impose his deeply unfair resolutions. These include his ludicrous proposal that he ought to pay no child support, or contribute to our child's education expenses in contravention of our agreement and this court's repeated decisions outlining that Defendant's position [ sic ] are not based in the statutes of this State or caselaw [NYSCEF #492, p. 2].
Application to Renew
CPLR 2221(e) allows for leave to renew shall be identified specifically as such; shall be based upon new facts not offered on the prior motion, that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion.
Defendant has filed multiple applications seeking leave to renew prior applications that this Court decided in the written April 18, 2022 decision [NYSCEF #100]. Central to defendant's dissatisfaction with this Court's prior decision is the determination inter alia that there was no basis for defendant's application to "terminate" his child support obligation as previously consented to by the parties in their November 19, 2019 financial stipulation of settlement. The Court previously detailed the legal requirements for seeking leave to renew in the March 30, 2023 decision and order.
Defendant's current application for leave to renew conflates the issues presented and confuses the standards on issue that are procedurally dictated by statute and a legion of case law. Application for leave to renew pursuant to CPLR 2221(e) for "newly discovered evidence" where there is a reasonable excuse for not presenting the evidence in the original application (see generally Verizon New York c Supervisors of Town of North Hempstead, 169 A.D.3d 740 [2 Dept.,2019]). It is well-established that "leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Caronia v Peluso, 170 A.D.3d 649 [2 Dept.,2019]). The Appellate Division, Second Department has consistently found that "[t]he Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion" (Greene v New York City Housing Authority, 283 A.D.2d 458 [2 Dept.,2001]; see also Jovanovic v Jovanovic, 96 A.D.3d 1019 [2 Dept.,2012][holding that "Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion").
Here, defendant contends that he is entitled to leave to renew based upon "newly discovered evidence" that the plaintiff received an inheritance; however, the record reveals that plaintiff disclosed the sum of the inheritance, the policy holder and the policy number of the inheritance in her affidavit of net worth dated February 9, 2022 [NYSCEF #95] which was prior to the date defendant's initial application was argued before the Court. Despite having this information, defendant chose not to subpoena documentation related thereto on his initial application despite a full and fair opportunity to do so or to present any arguments related to how that may or may not impact an application for downward modification which is detailed herein-below.
Defendant's decision only now, after his prior application for a downward modification based upon his numerous theories fully detailed in the prior written decision [NYSCEF #441] was denied, to subpoena documentation related to the inheritance he knew about at the time of the prior application in an attempt, in effect, to "cure" his failure of proof in his initial application does not qualify under the exacting requirements of CPLR 2221(e) as "newly discovered evidence" because the existence of the inheritance was disclosed to him prior to his application, he could have sought such discovery for his initial application and he offered no reasonable justification for his failure to do so. The Court notes that the justification defendant proffered - that plaintiff did not reveal the inheritance until after his application - is belied by the record.
Defendant is self-represented; however, he cannot use this status as a shield to circumvent the procedural requirements related to leave to renew or applications for downward modification nor does the Court have authority to make exception to these rigorous procedural requirements.
Reargument: Modification of Child Support Based on Inheritance
As detailed herein-above there is no legal basis to grant leave to renew based upon the facts presented by defendant; however, the Court will deem the application one for reargument. Defendant's attempt to "reach back" to secure a prior date for his latest downward modification application is not supportable by the facts and circumstances nor are the facts related to the inheritance as alleged by defendant a basis to retroactively "terminate" his child support obligation as he agreed to in the stipulation of settlement as he requests under any legal theory.
There appears to be no factual dispute that plaintiff received an inheritance upon the passing of her mother after the parties entered into their stipulation of settlement and the judgment of divorced was entered. Upon commencement of post-judgment litigation, plaintiff disclosed her inheritance of $250,000 on her Affidavit of Net Worth as detailed herein-above. The Court denied defendant's attempt to utilize this previously disclosed inheritance as a basis to, in effect, "excuse" his unilateral decision to stop paying child support without consent of the plaintiff or Court order permitting him to do so previously and, as detailed herein-above, there is no basis to grant leave to renew.
In effect, what defendant seems to seek is reargument on his application to - using his term - "terminate" his basic child support obligation. The Court declines, based on the totality of the circumstances, to in effect "reward" defendant's non-payment of child support by further downwardly modifying his child support obligation based on the plaintiff's modest - at least in the context of the counsel fees allegedly incurred in this post-judgment child support enforcement litigation - inheritance received subsequent to the judgment of divorce.
The Court notes that in Hejna v. Reilly, the Appellate Division, Third Department found that the moving party was not entitled to an upward modification of child support where the payor received an inheritance because the inheritance did not constitute an "unreasonable or unanticipated circumstances warranting a modification of child support" where the parties had entered into a stipulation of settlement resolving child support as is the case here (810 N.Y.S.2d 242, 244 [3 Dept.,2006]).
The Court did not set the basic child support obligation in the underlying divorce: the parties entered into a stipulation of settlement resolving the parties' respective financial obligations, including the parties' agreed upon downward deviation of defendant's basic child support obligation pursuant to the Child Support Standards Act. Defendant's numerous applications, in effect, seeking to re-negotiate the parties' stipulation to retroactively "excuse" his non-payment of child support and to end his future basic child support obligation based upon a multitude of theories including his claims related to voluntary expenses he incurs during his parenting time with the child and his claim that he has started another family and has financial obligations related to that partnership and child. He cannot avoid a child support obligation on a theory that plaintiff, in effect, "no longer needs the money" as defendant represented on the record, which is in and of itself improper and belies the purposes of the Child Support Standards Act.
The Court notes that plaintiff contends that, unlike the defendant, she is not an attorney and so she has been forced to incur nearly $100,000 in counsel fees to continue in this litigation while defendant uses his license to practice law to continue in his ongoing efforts to "terminate" his child support obligation by, in effect, retroactively voiding the parties' stipulation of settlement or forcing her to acquiesce to his demands because she can no longer sustain the cost of this litigation he can continue to pursue as a result of his law license.
Based on the totality of the facts and circumstances this Court rejects defendant's latest attempt to avoid the parties' stipulation of settlement related to his obligation to pay basic child support based on the modest (in relation to the counsel fees allegedly incurred for enforcement herein) inheritance plaintiff received after the parties divorced. This Court rejects defendant's latest proposition that plaintiff's modest inheritance is a basis, under the facts and circumstances presented here, to excuse his past non-payment of child support and to void his future basic child support obligation particularly where his multi-prong litigation strategies to obtain that outcome. Defendant's application to terminate his child support - whether raised by leave to renew or leave to reargue - based on plaintiff's inheritance is denied. The Court will not force plaintiff to incur yet more counsel fees related to defendant's latest effort to avoid his basic child support obligations and the Court will not set this issue down for a hearing which will force plaintiff to incur even more counsel fees which remain unpaid.
Motion to Quash Defendant's Subpoena for Plaintiff's Current Employment Records
Plaintiff contends that defendant has improperly served two subpoenas: one for life insurance records which, plaintiff's counsel contends they were not notified of until weeks later when defendant notified plaintiff's counsel that the subpoenaed records had been subpoenaed and produced, and the second subpoena which was served on plaintiff's employer without simultaneous notice on plaintiff's counsel. As such, plaintiff contends that the subpoena on plaintiff's employer is procedurally defective for failure to comply with CPLR 3120 (3).
CPLR 3120(3) provides:
The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party notice that the items produced in response thereto are available for inspection and copying, specifying the time and place thereof.
Defendant does not dispute that the subpoena was served on plaintiff's employer prior to notice being given to plaintiff's counsel. There is no dispute that defendant's subpoena was served on plaintiff's employer on May 15, 2023 [NYSCEF #549] and that defendant first notified plaintiff's counsel of the subpoena by e-mail dated May 19, 2023 at 12:33 p.m. [NYSCEF #481]: defendant concedes this fact. Nonetheless, defendant contends that "[f]or the plaintiff to make a big stink about service makes no sense because it was the defendant who learned from the plaintiff's counsel that the subpoena was just served" [NYSCEF #558, p. 24].
At oral argument on May 31, 2023 defendant conceded that around 4:30 p.m. on May 15, 2023 he served a subpoena on plaintiff's employer [apparently issued by this pro se litigant utilizing his authority as an attorney pursuant to CPLR 2302] and that plaintiff and plaintiff's counsel learned about the subpoena from plaintiff's employer not from defendant. The affidavit of service provided by defendant confirms service upon plaintiff's employer on May 15, 2023 [NYSCEF #549].
Plaintiff's counsel contends that defendant previously subpoenaed records related to the life insurance policy plaintiff received upon her mother's passing and that defendant did not notify him of that subpoena until after the subpoena was responded to [NYSCEF #538]. Defendant does not dispute this representation by plaintiff's counsel.
There appears to be no factual dispute that Defendant did not comply with CPLR 3120(3): as such, the subpoena served on plaintiff's employer is defective. Furthermore, there is no legal basis at this time to subpoena plaintiff's employment records inasmuch as there is no factual dispute: plaintiff represented through counsel that she already provided an updated financial record and defendant has not disputed this representation.
Subpoena Defect: Notice Failure [CPLR 3101(a)(4)]
It is also clear that the subpoena served on plaintiff's employer was also fatally defective for failure to attach proper notice pursuant to CPLR 3101(a)(4) which requires notice setting forth "the circumstances or reasons such disclosure is sought or required". (CPLR 3101[a][4]).
The Court of Appeals has held that CPLR 3101(a)(4) requires a party serving a subpoena, which is necessary to compel disclosure from a nonparty, to "sufficiently state the 'circumstances or reasons' underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it)...." Kapon v. Koch, 23 N.Y.3d 32, 34, 988 N.Y.S.2d 559, 562 [2014].
The Appellate Division, Second Department applied this procedural rule in Gandham v. Gandham, 170 A.D.3d 964, 96 N.Y.S.3d 612 [2 Dept.,2019], a divorce action, where the defendant served subpoenas on a nonparty with whom the plaintiff allegedly conducted an adulterous relationship. The nonparty moved under CPLR 2304 to quash the subpoenas. The Supreme Court granted the motion finding that the subpoenas did not comply with CPLR 3101(a)(4) because they did not state the circumstances or reasons the evidence was needed, and that the nonparty demonstrated that the evidence sought was "utterly irrelevant" to the action. On appeal, the Appellate Division, Second Department disagreed with Supreme Court's ruling that the testimony sought from the nonparty was "utterly irrelevant" but affirmed the order quashing the subpoena because "defendant failed to provide the nonparty with the required explanation of the circumstances or reasons requiring disclosure either on the face of the subpoenas or in any accompanying material." Id. at 966, 96 N.Y.S.3d at 614; see also Capacity Grp. of NY, LLC v. Duni, 186 A.D.3d 1482, 1483, 131 N.Y.S.3d 373, 375 [2 Dept.,2020]["[T]he subpoenas seeking the testimony of numerous nonparties were defective, since the plaintiff failed to provide the nonparties with a sufficient explanation of the circumstances or reasons requiring disclosure either on the face of the subpoenas or in any accompanying material"].
Defendant does not dispute that there is no notice provided with the subpoena served on plaintiff's employer. His attempt to, in effect, "cure" the notice defect in the subpoena by claiming after serving the subpoena that he is entitled to subpoena plaintiff's employment records because "all of these financial issues are highly important regarding who is going to pay for the attorney for the child" The CPLR does not provide a methodology for "curing" a procedurally defective subpoena that does not comply with CPLR 3101 as defendant contends nor does the Court adopt defendant's proposition that for plaintiff to rely on the procedures and rules established by the CPLR in this litigation is to "make a big stink."
The procedural rules that govern civil actions also apply to divorce and post-judgment actions following a divorce. These actions are every bit as "real" as any other civil action and are governed by the same rules and procedures. Even assuming that the subpoena served by defendant on plaintiff's employer was not procedurally defective as detailed herein above pursuant to CPLR 3120 (3), plaintiff's application to quash the subpoena defendant served on her employer as procedurally defective for failure to comply with CPLR 3101(a)(4) would be granted.
Evidentiary Hearing
The evidentiary hearing on the issues detailed in the March 30, 2023 decision and order - including plaintiff-mother's application for a change in custody - began on August 4, 2023 and continued on August 10, 2023 as previously scheduled on consent of the parties and counsel. Due to the parties' vacations and counsel and the Court's schedules the ongoing hearing shall continue on September 29, 2023.
As previously directed by this Court in the March 30, 2023 decision and order: "At the evidentiary hearing, defendant is barred from putting forth any proof as to the claims or theories denied here. The hearing is not a second opportunity to "test" the specious legal theories denied herein as noted previously." There is no application for modification of child support before the Court and renewal of that issue was herein denied. Even if this Court were to grant a future modification of child support there is no statutory authority for the Court to do so prior to the date of application (see Dox v Tynon, 90 N.Y.2d 166 [1997]). Defendant must stop attempting to relitigate the applications that this Court has already decided and is warned that he faces the potential for costs and sanctions pursuant to Rule 130.1 as well as counsel fees for frivolous, dilatorious conduct.
CONCLUSION
Defendant's order to show cause [motion sequence #13] is granted to the extent detailed herein.
Plaintiff's order to show cause [motion sequence #14] is granted to the extent detailed herein.
Defendant's order to show cause [motion sequence #16] is denied.
Any and all relief not granted herein is denied.
This shall constitute the decision and order of the Court.