Opinion
004562/2006.
Decided May 26, 2011.
Stephen David Fink, Esq., Attorney for Plaintiff-Wife.
Benjamin Vasilatos, LLC., Attorneys for Defendant-Husband.
Recitation as required by CPLR § 2219(a), of the papers considered in review of the Order to Show Cause for an order: (1) granting Dominick Luca a downward modification in child support (based upon the applicable provisions of the CSSA guidelines, as it applies to his current circumstances which he alleges has unanticipatedly changed substantially and reasonably); (2) reforming, modifying or setting aside the terms of the "Property Settlement Agreement" or Stipulation of Settlement (or such agreement, by whatever name known), which agreement allegedly settled the above captioned matrimonial action (as being excessive and/or unconscionable in its present form and as relating to present circumstances); (3) setting aside the Judgment of Divorce in this action, as such Judgment incorporated the above described stipulation of settlement which, it is alleged, must be set aside; (4) requiring the plaintiff to pay/return to the defendant the sum of $101,687, or such other amount as this court may determine, in order to comply with the terms of the Stipulation of Settlement as regards the distribution of the proceeds of the sale of the marital home; and (5) such other and further relief as the Court deems to be just and proper; and Plaintiff's Cross Motions seeking: (1) dismissal of the application by the Defendant, Dominick Luca; (2) granting the motion for a hearing as to attorney fees; and (3) such other and further relief as to this Court deems just and proper; and Defendant's Order to Show Cause for an Order: (1) staying a matter presently pending before the Family Court, Queens County, captioned Matter of Nina Bianco against Dominick Luca, (hereinafter, "The Family Court Proceeding") pursuant to CPLR 325 and 326; and (2) directing that the Family Court Proceeding be removed from the Family Court and transferred to the Supreme Court for Queens County to be consolidated with, joined with, and be heard and decided together with the instant matter which is scheduled to be heard by this Court on March 10, 2011, pursuant to CPLR 325, 326 and 602; or (3) staying the Family Court Proceeding until such time as the Supreme Court downward modification proceeding, and proceeding seeking an adjustment regarding the distribution of the proceeds of the marital home has been determined and; (4) directing such other further and different relief as this Court may deem just and proper.
PapersNumbered 1-3 4a-4k 5-6 7a-7d 8-10 11a-11f 12 13 14a-14b
Order to Show Cause, Affirmation and Affidavit annexed ........................ Exhibits Annexed to Order to Show Cause ....................................... Cross Motion and Affirmation in Opposition .................................... Exhibits Annexed to Cross Motion and Affirmation in Opposition ................ Order to Show Cause, Affirmation and Affidavit annexed ........................ Exhibits annexed to Order to Show Cause ....................................... Affirmation in Opposition and in Support of Orders to Show Cause .............. Affirmation in Support of Cross Motion and in Opposition to OSC ............... Exhibits annexed to Affirmation in Support of Cross Motion ....................Upon the foregoing cited papers, the Decision/Order on the Court is as follows:
On December 7, 2006, the parties entered into a "Property Settlement Agreement"(hereinafter referred as "PSA") resolving the ancillary issues of their matrimonial proceeding. On that date, the parties proceeded to an inquest to resolve the grounds of the divorce. The Judgment of Divorce, which incorporated the PSA by reference, was signed on March 16, 2007. There are two children of the marriage.
Defendant-husband (hereinafter referred as "Defendant") files an Order to Show Cause, dated January 26, 2011, for an Order: (1) granting Defendant a downward modification in child support, pursuant to the applicable provisions of the Child Support Standards Act, as his current circumstances have unanticipatedly changed substantially and unreasonably; (2) reforming, modifying or setting aside the terms of the PSA as said agreement is excessive and/or unconscionable in its present form and as relating to present circumstances; (3) setting aside the Judgment of Divorce in this action, as such Judgment incorporated the PSA, which it is alleged, must be set aside; (4) requiring the Plaintiff to pay/return to the Defendant the sum of $101,687, or such other amount as this Court may determine, in order to comply with the terms of the PSA as regards the distribution of the proceeds of the sale of the marital home; and (5) for such other and further relief as the Court deems to be just and proper.
Plaintiff-wife (hereinafter referred as "Plaintiff") files a Cross Motion and Affirmation in Opposition, dated March 10, 2011, seeking an Order: (1) dismissing Defendant's application; (2) granting the cross-motion for a hearing as to attorney fees; and (3) such other and further relief as to this Court deems just and proper.
Defendant files an Emergency Order to Show Cause, dated March 3, 2011, seeking an Order: (1) staying a matter presently pending before the Family Court, Queens County, captioned Matter of Nina Bianco against Dominick Luca, (hereinafter referred as "the Family Court Proceeding"), pursuant to CPLR §§ 325 and 326; (2) directing that the Family Court Proceeding be removed from the Family Court and transferred to the Supreme Court, Queens County, to be consolidated with, joined with, and heard and decided together with the instant matter, pursuant to CPLR §§ 325, 326 and 602; or (3) staying the Family Court Proceeding until such time as the Supreme Court downward modification proceeding, and proceeding seeking an adjustment regarding the distribution of the proceeds of the marital residence has been determined; and (4) directing such other further and different relief as this Court may deem just and proper.
On April 6, 2011, both parties appeared with counsel. The Court heard oral arguments on the instant motion.
Upon the papers and after argument, the Court makes the following findings and orders.
DOWNWARD MODIFICATION OF CHILD SUPPORT
Defendant seeks a downward modification of his child support obligation on the grounds that his current circumstances have unanticipatedly changed substantially and unreasonably. Defendant argues that he is the sole proprietor of Bre-Dan, Inc., which operates a pizzeria, Ariana's Pizzeria, in Forest Hills, New York. In his supporting affidavit to the Order to Show Cause, Defendant indicates that he has operated the pizzeria for the past six or seven years. Defendant alleges that due to the economic downturn, commencing in approximately 2008, he has suffered a decline in his business and a resulting decline in his income by approximately fifty (50%) percent.
The parties' PSA, executed on December 7, 2006, indicate that at the time, Plaintiff did not have an income and Defendant earned $80,000.00 annually. According to said agreement and pursuant to the Child Support Standards Act, Defendant's child support obligation was $20,000.00 annually, or $1,666.00 monthly. The parties agreed to deviate from the Child Support Standards Act based upon the "limited income of the Wife and the increased needs of the children as they get older," and fixed Defendant's child support obligation in the amount of $2,500.00 monthly. Said settlement agreement was incorporated by reference, but not merged, into the Judgment of Divorce.
In support of his application, for a downward modification based upon an unanticipated, substantial and unreasonable change in circumstances, Defendant submitted an unsigned and undated tax returns for the year 2007, showing an adjusted gross income of $39,347.00; a letter from Wayne Cebollero, CPA, the accountant for both Bre-Dan Pizzeria Corp., and Dominick Luca, dated September 11, 2008, indicating that Defendant, "is currently being paid from Bre-Dan Pizzeria, Corp. $300.00 per week . . . having social security taxes of $22.95 deducted from his paycheck leaving . . . a net paycheck of $277.05"; an unsigned, undated Statement of Net Worth, which was not notarized, showing an income of $14,406.00 annually and liabilities in the amount of $370,640.00; an undated, unsigned tax returns for the year 2008, showing an adjusted gross income of $35,314.00; a Notice of Eviction from the Civil Court of the City of New York, County of Queens, dated January 10, 2011, in the matter of Edken Corp. v Bre-Dan Pizzeria, Inc.; a Statement of Net Worth, sworn to on December 19, 2010, showing an income of "$35,000 to $39,000 yearly," and liabilities in the sum of $482,000.00; a Statement of Proposed Audit Change for Sales and Use Tax from the New York State Department of Taxation and Finance, dated November 18, 2010, showing that Bre-Dan Pizzeria, Inc. owed $86,186.06 for the audit periods of December 1, 2006, though August 31, 2009; and an unsigned and undated 2009 tax return, showing an adjusted gross income of $36,735.00.
Defendant further argues that since the divorce, both the needs of Plaintiff and the parties' children have changed. Defendant contends that Plaintiff has obtained employment and is currently living with her boyfriend, who defrays the living expenses, and the parties' eldest child is currently attending college in New Rochelle and resides at school for most of the year, with most of her expenses paid by scholarship. Defendant maintains that these factors constitute a change in circumstances in his favor to warrant a downward modification of his child support obligation.
Plaintiff opposes Defendant's application for a downward modification arguing that Defendant has not made a prima facie case for a downward modification. Plaintiff argues that Defendant failed to annex proof of his financial circumstances in 2006, when the PSA was executed as compared to the date of the instant application for a downward modification. Plaintiff further claims that Defendant's application for a downward modification should be dismissed.
In further support of his motion and response to Plaintiff's opposition, Defendant counters that a showing of his income in 2006 is unnecessary because in the PSA the parties stipulated that Defendant's income was $80,000.00. Plaintiff argues that Defendant failed to present sufficient and relevant documents regarding his financial situation for this application and documents to compare at the time of the prior judgment. In addition, Plaintiff asserts that while Defendant may have shown less income, the Court must also consider Defendant's ability to provide support as well as his assets and earning powers. Based on these factors, Plaintiff argues that Defendant has failed to sustain his burden for a downward modification.
The Court of Appeals has held that where the parties have included child support provisions in a separation agreement, the child support provisions should not be freely disregarded. ( Boden v Boden, 42 NY2d 210) Absent a showing of unreasonable and unanticipated change in circumstances, the provisions of a separation agreement should not be disturbed. Id. The party seeking the modification must establish the change in circumstances warranting the modification. Where the application is for a downward modification of child support, the change in circumstances must be a substantial one ( Praeger v Praeger, 162 AD2d 671 [2nd Dept 1990]). In determining whether there has been a substantial change in circumstances, the change in circumstance is measured by comparing the payor's financial situation at the time of the application for downward modification with the payor's financial situation at the time of the order or judgment ( Talty v Talty , 42 AD3d 546 [2nd Dept 2007]). To determine whether a substantial, unanticipated and unreasonable change in circumstances warranting a downward modification exists, the court is required to conduct a hearing where, "the parties' affidavits disclose the existence of genuine triable issues of fact" ( Martin v Martin , 80 AD3d 579 , 288 [2nd Dept 2011]). "Absent a prima facie demonstration of entitlement to a downward modification, the party seeking modification has no right to a hearing" ( Ritchey v Ritchey, 2011 NY Slip Op 01989 [2nd Dept 2011], quoting Lewis v Lewis , 43 AD3d 462 , 463 [2nd Dept 2007]).
It is undisputed that at the time of the settlement agreement, the parties stipulated that Defendant's income was $80,000.00. Defendant now claims that his income has decreased drastically and submitted several documents in support of his application seeking a downward modification of his child support. However, the volume of documents is not determinative but rather the substance and relevance of each particular document.
While the Defendant has submitted tax returns for the years of 2007, 2008 and 2009, albeit undated and unsigned, Defendant failed to present documents to establish his actual income. Defendant submitted a letter from his business and personal accountant, dated September 11, 2008, indicating that Defendant received a salary of $300.00 weekly from his pizzeria business. However, in this motion, Defendant failed to show his relevant weekly income for 2010 or current to 2011.
In contradiction are Defendant's tax returns. The undated, unsigned tax returns for 2007, 2008, and 2009 (emphasis added), reflects adjustments from Defendant's total income for "self-employed health insurance deduction." However, both Statements of Net Worth submitted by Defendant include expenses for medical insurance. Thereby showing that Defendant double claimed the same expenses from his income on his tax returns and his Statement of Net Worth.
Defendant's Statements of Net Worth are more problematic and less credible regarding Defendant's debts. The undated, unsigned Statement of Net Worth, not notarized, indicates that Defendant's mother lent him $330,000.00 in July 2004 to acquire his business and indicates that Defendant's capital contribution was "none." (emphasis added) However, the signed and notarized Statement of Net Worth, dated December 29, 2010, shows that Defendant obtained a loan from Chase in the amount of $330,000.00 in July 2004 to acquire the business and that Defendant's capital contribution to Bre-Dan Pizzeria was $400,000.00. (emphasis added) The unsigned, unsworn and undated Statement of Net Worth indicates that the equity in Defendant's business is "none," but the dated, signed and sworn Statement of Net Worth indicates that the current net worth of the business is "$0 to $50,000.00." While Defendant has established that he owes substantial sums to his landlord and the New York State Department of Taxation and Finance, Defendant has failed to provide evidence regarding the amounts of money received from his business and the expenses therefrom.
As Defendant is the sole proprietor of Bre-Dan Pizzeria, evidence regarding Bre-Dan Pizzeria's gross income, expenses and net income, is necessary to determine Defendant's financial circumstances both at the time of the PSA agreement and the change at the time of this application .
Additionally, Defendant argues that at the time of the PSA and Judgment of Divorce, Plaintiff's income was "$0," but Plaintiff is currently employed and lives with her boyfriend, who defrays living and household expenses. The parties' PSA provided that Defendant would pay $2,500.00 monthly as child support because of Plaintiff's limited income and the increased needs of the children as they aged. Defendant argues that Plaintiff's employment constitutes a substantial change in circumstances warranting a downward modification.
Defendant relies upon the Appellate Division, First Department decision in the matter of Vincent Z. v Dominique K. , 62 AD3d 402 (2009).However, this case is distinguishable. In Vincent Z., the Court noted that a review of the record of the open court proceedings regarding the proposed settlement agreement indicated that the parties intended to give the court power to modify the parties' child support obligation once the respondent-mother obtained full time employment. The Support Magistrate ultimately found that respondent-mother's five-fold increase in earnings constituted a change in circumstances warranting a downward modification. There was a reservation of jurisdiction and incorporation for possible modification for subsequent employment. In the instant matter, the parties' agreement does not include a provision for reservation for modification of child support upon subsequent employment. Notably, the parties' PSA did provide for reservations by incorporating a provision to permit Plaintiff to claim one of the children as a dependent on her taxes, if her income exceeded $50,000.00, exclusive of disability payments and nothing else. The inclusion of this provision indicates that the parties anticipated and that Plaintiff would obtain employment after the execution of the PSA and signing of the Judgment of Divorce. The intent of the parties were manifested in the care of inclusion of specific clauses. Any consideration not mentioned is deemed to be the specific intent of the parties. Therefore, the employment of the Plaintiff under these circumstance is not "unanticipated" and does not warrant a downward modification of Defendant's child support obligation.
Therefore, based on Defendant's failure to make a prima facie showing of unanticipated, unreasonable substantial change in circumstances, the motion for a downward modification of his child support is denied. Likewise a hearing is denied.
REFORMING, MODIFYING, SETTING ASIDE PROPERTY SETTLEMENT AGREEMENT AND JUDGMENT OF DIVORCE
In his Affirmation in Opposition to Plaintiff's motion and in further support of Defendant's Order to Show Cause, Defendant concedes that such relief may be sought only by plenary action, not by the instant Orders to Show Cause. On April 6, 2011, Defendant withdrew that branch of his motion seeking to reform, modify or set aside the PSA.
ENFORCEMENT OF JUDGMENT OF DIVORCE
Defendant seeks an order requiring Plaintiff to pay/return to Defendant the sum of $101,687.00, or such other amount as this Court may determine, in order to comply with the terms of the PSA as regards the distribution of the proceeds of the sale of the marital home. Defendant argues that the parties' PSA provides that upon the sale of the marital residence, "the parties shall divide the net amount received as follows: 65% to the husband and 35 % to the wife after the deduction of all closing costs, the mortgage, and $10,000.00 each for attorneys fees." The marital residence was sold in November 2007 for $840,950.00 and after closing, the net proceeds were $189,891.11. After deduction of Defendant's arrears and attorneys fees, Defendant received $29,708.00, while Plaintiff received $131,395.00. Defendant argues that the proceeds of the sale of the marital residence were distributed incorrectly and in the reversed from the percentage that was stated in the PSA. Defendant now seeks enforcement of the Judgment of Divorce, which incorporated the PSA by reference, an order directing Plaintiff to return/repay to Defendant the sum of $101,687.00, or such other amount as the court determines.
Plaintiff argues the percentages set in the PSA were incorrectly stated, but that the division of the proceeds from the sale of the marital residence was proper. In the alternative, Plaintiff argues that the doctrine of laches is applicable, as four years have elapsed since the distribution of the proceeds from the sale of the marital residence.
In support of Plaintiff claim that the distribution was proper in opposite to the PSA, she submitted a copy of an unsigned letter from the parties' real estate attorney, dated November 26, 2007, regarding the distribution of the proceeds from the sale of the marital residence, and copies of the parties' distribution checks. The unsigned letter, dated after the sale of the marital residence, states that:
"I have been advised by both Dominick Luca and Nina Luca that based on the above they are satisfied with the actual checks received (emphasis added). If this is not correct, please contact my office immediately."
Defendant neither disputed receipt of this letter nor indicated that he contacted the real estate attorney's office regarding the distribution of the proceeds. However, the failure to dispute the letter or contact the real estate attorney's office does not estop the Defendant from seeking enforcement of his rights under the PSA. The letter merely serves as an alternative to resolve the disputed incorrect distribution. Of note, that while Plaintiff argues that the actual distribution of the proceeds was proper, she has failed to present credible and sufficient evidence to substantiate her claim. There is no affidavit from Plaintiff in support of her position.
It is undisputed that the parties' PSA provided that Plaintiff and Defendant would receive thirty-five percent (35%) and sixty-five percent (65%) of the proceeds, respectively. In it is also undisputed that the proceeds of the sale was distributed in opposite to the PSA. Upon review of the PSA, both parties were represented by attorneys at the time of the execution of the PSA. The parties laid out in detail the resolved ancillary matters and reserving rights to the Plaintiff. Based on the detailed provisions in the PSA regarding the debts and obligations of the parties, the Court finds no indicia to show the parties did not intend the percentage distribution of the proceeds. New York Civil Practice Law and Rules (hereinafter referred as "CPLR") § 213 (1) provides that in a civil action for which there is no specifically prescribed statute of limitations, the action must be commenced within six years. In addition, PSA is a contract between the parties subject to subject to six year statute of limitations. "CPLR" § 213 (2).The Appellate Division has held that six year statute of limitations is applicable to distributive awards in matrimonial proceedings. (See, Woronoff v Woronoff , 70 AD3d 933 [2nd Dept 2010].)For all of those authorities, the six year statute of limitations is applicable to this case.
Assuming that laches applies, although this Courts finds otherwise, the doctrine of laches requires the party asserting the defense, must show not only delay, but also injury, change of position, intervention of equities, loss of evidence or some other disadvantage resulting from such delay. ( Thurmond v Thurmond, 155 AD2d 527 [2nd Dept 1989]).
Plaintiff asserts the doctrine of laches, arguing that almost four years has elapsed since the sale of the marital residence. While Plaintiff argues that more than four years has passed since the parties executed their separation agreement and almost four years has passed since the marital residence was sold, she has failed to allege that she has been injured or that her position as changed as a result of Defendant's delay in bringing the instant motion to enforce the Judgment of Divorce. Thus, the doctrine of laches is not applicable in the instant matter.
Accordingly, Defendant's application to enforce the Judgment of Divorce is granted.
ANALYSIS OF NET PROCEEDS
Sale Price of Marital Residence: $840,950.00
Net Proceeds after sale of Marital Residence: $189,891.11
Plaintiff percentage:35% or $ 66,461.89
Defendant percentage:65% or $123,429.22
Pursuant to the PSA, Defendant was responsible for the household and car expenses until the sale of the marital residence.
DEDUCTION FROM PROCEEDS:
DEFENDANT DEDUCTION AMOUNT
Child support arrears $6,000.00
Con Edison $1,56.24
Clearwater $1,520.00
Interest and foreclosure expense on first mortgage $17,331.80
Interest and foreclosure expense on second mortgage $4,198.50
Sub-Total deduction by Defendant $30,806.54
Less additional Defendant's counsel fee $5,500.00
Total deduction from proceeds for Defendant $36,306.54
ANALYSIS OF DISTRIBUTION OF PROCEEDS:
Pursuant to the PSA the correct distribution of proceeds after the sale should have been: Correct distribution to Plaintiff $72,461.89
Plaintiff at 35% $66,461.89 Plus child support arrears $6,000.00 Correct distribution to Defendant $87,122.68 Defendant at 65% $123,429.22 Less deductions of $36,306.54 Undisputedly, the proceeds after the sale were distributed as follows:Plaintiff received: $131,395.00
Defendant received: $ 29,708.00 THE AMOUNTS OVERPAID AND UNDERPAID ARE: Amount owed to Defendant $57,413.90
Defendant at 65% $123,429.22 Less expenses pursuant to PSA $30,806.54 Less amount received $29,708.78 Less attorney fee $5,500.00 Amount Plaintiff received in excess Sub-total $129,429.22 $56,967.34 Plaintiff at 65% $123,429.22 Plus child support arrears $6,000.00 * Less correct distribution $72,461.88* The Court notes that Plaintiff received a check in the sum of $131,395.00, reflecting a difference in the sum of $1,965.78 from $129,429.22. The Court is unable to ascertain the source of this additional sum of money and why said sum was distributed to Plaintiff.
The court notes that there is a difference of $446.56 between the amount Plaintiff received in excess ($56,967.34) and the amount owed to Defendant ($57,413.90). According to the unsigned letter from the parties' real estate attorney, at the time of closing, there was an outstanding water bill in the amount of $446.56. The figure appears to account for the outstanding water bill.
Accordingly, the branch of Defendant's Order to Show Cause seeking enforcement of the Judgment of Divorce and the PSA is granted. Plaintiff owes Defendant the sum of $56,967.34, as Defendant's proper distributive share of the proceeds from the sale of the marital residence. Furthermore, the Court directs the parties to contact the Court for a conference to determine the allocation of the additional funds in the sums of $1,965.77 and $446.56.
PLAINTIFF'S CROSS MOTION TO DISMISS
Plaintiff filed a Cross-Motion to dismiss Defendant's Order to Show Cause seeking a downward modification of his child support obligation and enforcement of the Judgment of Divorce. As Defendant's application seeking a downward modification of his child support obligation has been denied and Defendant's application seeking enforcement of the Judgment of Divorce has been granted, Plaintiff's motion to dismiss Defendant's Order to Show Cause is denied as moot.
PLAINTIFF'S MOTION FOR ATTORNEY'S FEES
In her Cross Motion, Plaintiff seeks a hearing regarding attorneys fees. Notably, in his attorney affirmation, Plaintiff's counsel indicates that Plaintiff has not set forth the requirements of 22 NYCRR part 1400.1(3) as to attorneys fees, but indicates that Plaintiff seeks leave to do so. Annexed to Plaintiff's Cross Motion is a copy of the retainer agreement and clients rights.
22 NYCRR part 1400 is applicable to attorneys who represent parties in domestic relations matters. This statute provides that attorneys who represent parties in domestic relations matters must execute a written agreement setting forth the terms of compensation and nature of services to be rendered. The client must sign the agreement and a signed copy of the written agreement must be filed with the court along with a Statement of Net Worth.
In the instant matter, the Court notes that Plaintiff's counsel's affirmation in support of the instant Cross Motion is dated March 10, 2011. To date, Plaintiff has not submitted a Statement of Net Worth. As Plaintiff has not submitted a Statement of Net Worth, Plaintiff's application for attorney's fees is denied.
STAY AND CONSOLIDATION OF THE FAMILY COURT PROCEEDINGS
Defendant filed an Emergency Order to Show Cause seeking a stay of the Family Court Proceeding, pursuant to CPLR §§ 325 and 326. Defendant also seeks an Order directing that the Family Court Proceeding be removed from the Family Court and transferred to the Supreme Court, County of Queens, to be consolidated with, joined with, and be heard and decided with the instant matter, pursuant to CPLR §§ 325, 326 and 602. Plaintiff opposes the stay and consolidation on the grounds that testimony has already been taken in the Family Court Proceeding and the instant application seeking a downward modification seeks prospective relief.
CPLR §§ 325 and 326 provides for the removal and consolidation of cases from another court. Under, CPLR § 602 when actions involving common questions of law or fact are pending before the court, the court may consolidate the actions. When an action is pending in supreme court and another court, the supreme court may remove the case to itself and consolidate it and try the actions together in the supreme court.
On May 28, 2010, Plaintiff filed a petition seeking a Violation of an Order of Support in Queens Family Court alleging that Defendant did not comply with the Order of Child Support as directed in the Judgment of Divorce. The parties appeared before a Support Magistrate in July and October 2010 and January 2011. Defendant argues that these matters should be consolidated as Family Court is a court of limited jurisdiction and, therefore, can only decide the limited issue of the child support arrears while the Supreme Court has the authority to decide the matters of child support arrears and the distribution of the proceeds of the sale of the marital residence; therefore, they involve common questions of law and fact regarding the allocation of money between the parties. Plaintiff counters that the matter pending in Supreme Court seeks only prospective relief and the matters should not be consolidated.
The matters of child support arrears and distributions of proceeds from the sale of a marital residence do not always involve common questions of law or fact. However, in the instant matter, the issue of child support arrears is intertwined with the issue of distribution of funds from the proceeds of the sale of the marital residence. This Court has held the distribution of the proceeds from the sale of the marital residence was improper and found that Plaintiff owes Defendant $56,967.34. However, this Court stays the execution of the Order of reimbursement of $56,967.34 until after the determination of child support arrears.
Accordingly, Defendant's application to consolidate the Family Court proceeding with the instant proceeding is granted. An Order of Consolidation shall be provided to both counsels.
The above constitutes the decision and Order of the Court.