Opinion
No. XXXX/2014.
03-04-2015
MG, Plaintiff, v. SA, Defendant.
Plaintiff represents himself pro-se. Defendant is represented by Henry James Joseph, Esq.
Plaintiff represents himself pro-se.
Defendant is represented by Henry James Joseph, Esq.
Opinion
CARL J. LANDICINO, J.
The following papers numbered 1 to 11 read herein:
| Papers | Numbered |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed | 1–2 |
| Opposing Affidavits (Affirmations) | 3–4 |
| Reply Affidavits (Affirmations) | 5 |
| Plaintiff's Memorandum of Law in Reply | 6 |
| Stipulation of Settlement | 7 |
| Custody Agreement | 8 |
| Judgment of Divorce | 9 |
| Plaintiff's Statement of Net Worth | 10 |
| Defendant's Statement of Net Worth | 11 |
Upon the foregoing papers, in this action by plaintiff MG (plaintiff) against defendant SA (defendant) seeking declaratory relief and specific performance, plaintiff moves for summary judgment, by order to show cause, under motion sequence number one, for an order: (1) declaring that the term “taxable income,” as used in the Stipulation of Settlement dated June 25, 2013 between him and defendant (the Stipulation of Settlement) to refer to his right to claim their son, B, as a dependent exemption on his tax returns if defendant's “taxable income” is less than $30,000, means “taxable income,” as defined by the Internal Revenue Service (IRS), i.e., gross reportable income less deductions and exemptions, (2) pursuant to the Stipulation of Settlement, compelling defendant to execute IRS Form 8332, allowing him to claim both of his and defendant's children, B and O, as dependents on his 2013 tax returns, (3) declaring that the Stipulation of Settlement obligates defendant to pay the entire amount of the special assessment imposed on his and defendant's former marital residence, i.e., $11,781.50, by the Condominium Board (the Condominium Board) for repairs to common areas of the condominium complex, (4) pursuant to the Stipulation of Settlement, directing defendant to authorize their attorney (the Attorney), the holder of the escrow amount representing the special assessment, to release the entire amount held in escrow for that purpose to him, (5) pursuant to the Custody Agreement, dated September 27, 2012, between him and defendant (the Custody Agreement), declaring the following: (a) that he has a right of access to O for 183 days and to B for 182 days, including overnight, over the course of a calendar year, (b) that the terms relating to the amount of weeks to which they are respectively entitled to access to the children during August are a guideline, and, thus, may be adjusted to ensure his right to access to O for 183 days and to B for 182 days during the course of a calendar year, (c) that assuming that the terms relating to the amount of weeks to which they are respectively entitled to access to the children during August are mandatory, the one week of access to the children to which defendant is entitled need not consist of seven contiguous days, and (d) that assuming that the terms relating to the amount of weeks to which they are respectively entitled to access to the children during August are mandatory, the one week of access to the children to which defendant is entitled includes the days of August in which she has access to the children as part of the 30–day period that she has access to them following the Fourth of July holiday, and (6) directing that they meet with their parental coordinator, (MS), within five days of the order resolving the access portion of this motion, or as soon thereafter as MS is available, to complete an access schedule for the remainder of this year consistent with the court's declarations with respect to the custodial issues identified above, and empowering MS, consistent with the Custody Agreement and the court's order, to resolve any disagreement between him and defendant with respect to the schedule.
The publication version of this Decision and Order was edited for privacy.
Facts and Procedural Background
Plaintiff and defendant were married on August 5, 1994 in a civil ceremony in New York, and two children were born of the marriage (the children). The former marital residence of the parties was a condominium unit, in Brooklyn, New York (the “Former Marital Residence”). The Former Marital Residence was titled in both their names as tenants by the entirety. The parties separated on August 5, 2008, with defendant remaining in exclusive occupancy of the Former Marital Residence. In 2009, plaintiff filed an action for divorce against defendant in the Supreme Court, New York County (the divorce action).
By the Custody Agreement dated September 27, 2012, the parties resolved all issues of custody and access with respect to the children. The Custody Agreement provided for joint legal custody of the children, and stated that it was “clearly understood by both parents that the following custodial schedule represent[ed] their agreement as to the children's time with them.” According to plaintiff, the Custody Agreement was drafted so as to give both him and defendant equal access to the children and to provide that he would have O for 183 days of the year and that defendant would have B for 183 days out of the year. He asserts that this ensured that they would each be able to claim one child as a dependent on their income tax returns and claim the head of household filing status, which requires that a dependent reside with the taxpayer a majority of the days of the years. To accomplish this, paragraph (B)(1) of the Custody Agreement provided that plaintiff and defendant would divide equally their access to the children during the non-holiday portions of the school year by granting plaintiff access to the children every Wednesday and Thursday, and every other Friday through Sunday, i.e., seven of every 14 days. In addition, paragraph (B)(2) of the Custody Agreement divided access to the children during the holidays and school recess periods between plaintiff and defendant. Furthermore, paragraph (B)(5) of the Custody Agreement, entitled “Summer Recess,” provided as follows:
“The Children shall be with the Father from 6:00 P.M. on the last day of school through the end of the July 4th holiday, returning to the Mother no later than 10:00 A.M. on the day after the holiday. It is the intent of the parties that the Children shall then be with the Mother from the day after the observance of the July 4th holiday at 10 A.M. for a period of up to 30 days, during which time she may travel with the Children to France. It is also the intent of the parties that the Children shall also be with the Father for at least three (3) weeks of August every summer, plus Labor Day Weekend in September and at least one (1) week in August with the Mother. If either party wishes to amend the Summer Schedule in any particular year, they shall request a meeting with the parent coordinator [i.e., MS] named in paragraph “M” ... no later than March 31 of that year. The other party must respond within 72 hours of the request for the meeting, and the meeting must be scheduled within one week (depending upon the Parent Coordinator's availability). The parties shall confer with one another and ... MS in accordance with the criteria set forth in paragraph “M” ... with a view toward ensuring that the Summer Recess shall be apportioned so as to ensure that, taking into account the rest of the year's schedule, the Father spends 183 days with O (184 on leap years) and the Mother spends 183 days with B (184 on leap years).”
Paragraph (M) of the Custody Agreement provided that “[i]n order to achieve the mutual cooperation and consultation necessary to make the appropriate decisions regarding their children and the custodial arrangements,” MS would serve as the parenting coordinator, “on an as needed basis.” It specified that if the parties could not agree as to a particular decision after good faith consultation, they were required to consult Sheehan, who would then attempt to resolve the disagreement between the parties concerning the children.
On June 25, 2013, the parties entered into a Stipulation of Settlement which expressly provided that it incorporated the Custody Agreement therein by reference. By the Stipulation of Settlement, the parties resolved all financial matters arising out of the marriage, including child support, maintenance, the Former Marital Residence, equitable distribution of property, and taxes. Article VI of the Stipulation of Settlement, entitled “Marital Residence,” set forth that the Former Marital Residence, where defendant had continued to remain in exclusive occupancy following the parties' separation, would be listed with a broker for sale, and that after payment of the usual and customary costs of sale, the parties would divide the proceeds of the sale equally. Paragraph 5 of Article VI of the Stipulation of Settlement provided as follows:
“The Wife shall retain exclusive occupancy until such sale and shall be solely responsible for the payment of all carrying charges on the Marital Residence, including but not limited to common charges, utilities, insurance, repairs and maintenance and the like. The Wife will also be responsible for carrying an appropriate homeowner's policy in full force and effect. The cost of any necessary extraordinary repairs or maintenance (exceeding $1,000 per item) shall be split equally by the parties and each shall be reimbursed from the proceeds of the sale of the Marital Residence for any amounts actually expended by them for such purpose, if any, prior to their division. Notwithstanding the foregoing, except in the case of an emergency, neither party shall be required to pay for any extraordinary repair or maintenance item for which he or she was not consulted in advance and given an appropriate opportunity to obtain his or her own estimate of the cost of the repair or to mitigate any progressive damage from a contractor of his or her choice. To this end, the Wife shall notify the Husband of any repair which is required, and he shall be obligated to get an estimate for the work to be done from a reputable contractor within a reasonable period of time. If the Wife disagrees with the Husband's estimate, such agreement not to be unreasonably withheld, then the Wife shall have thereafter the right to obtain her own estimate for the identical work from a reputable contractor within a reasonable period of time, and she shall then be responsible only for her share of the cost of her contractor's estimate, whether the Husband chooses to use her contractor or his own. Similarly, the cost of any repairs required or suggested by the broker for the purpose of preparing the property for sale shall be split equally by the parties.”
Article IX of the Stipulation of Settlement, entitled “Taxes and Tax Returns,” provided, in paragraph 1, that the parties had filed joint income tax returns during the marriage through the calendar year 2012. As to future tax returns, beginning in the 2013 tax year, it provided, in paragraph 4, as follows:
“The Husband shall have the right to claim O as a dependent for income tax purposes on his hereinafter separate returns and the Wife shall have the right to claim B as a dependent for income tax purposes on her hereinafter separate returns, in accordance with the provisions of the September 27, 2012 Custody Agreement ... Notwithstanding the foregoing, in the event that the Wife has taxable income of less than $30,000 in any given year or will otherwise not benefit from the exemption, then the Husband shall have the right to claim all eligible Children as dependents on his separate returns for such year(s). To effectuate the provisions of this paragraph 4, the parties shall execute any and all documents required by the Internal Revenue Service, including but not limited to IRS Form 8332 or any successor document.”
A Judgment of Divorce, dated May 1, 2014, and signed by Justice L .D., was entered on May 13, 2014, and dissolved the parties' marriage on the ground that the relationship between plaintiff and defendant had broken down irretrievably for a period of at least six months, pursuant to Domestic Relations Law § 170(7). The Judgment of Divorce provided for joint custody of the children pursuant to the Stipulation of Settlement which incorporated the Custody Agreement. The Judgment of Divorce ordered and adjudged that the Stipulation of Settlement and incorporated Custody Agreement would survive and would not be merged into that judgment.
The Former Marital Residence was sold, and the parties presently both reside in Brooklyn, New York. However, in the course of the parties' dealings since the Custody Agreement and the Stipulation of Settlement were signed by them, they have been unable to agree upon the meaning and effect of certain terms contained therein. Specifically, as to the Custody Agreement, the parties dispute whether the terms relating to plaintiff's right of access to O for 183 days and to B for 182 days over the course of a calendar year and the terms relating to the amount of weeks to which the parties are entitled to access to the children during August are a guideline or are mandatory. The parties also dispute, in the event that the terms in the Custody Agreement relating to the amount of weeks to which the parties are entitled to access to the children during August are construed as mandatory, whether the one week of access to the children to which defendant is entitled must consist of seven consecutive days and whether this week includes the days of August that Defendant has access to the children as part of the 30–day period in which she has access to the children following the Fourth of July holiday. As to the Stipulation of Settlement, the parties have been unable to agree as to whether, under the terms of paragraph 5 of Article VI, defendant is required to pay the entire amount of a special assessment in the amount of $11,781.50, which was imposed on the former marital residence by the Condominium Board for repairs to common areas of the condominium complex in May 2013. Due to defendant's contention that she was only required to pay half of this special assessment, it was not paid and the Condominium Board imposed a lien on the former marital residence for the amount owed. When the former marital residence was sold, this lien was paid off from the sale proceeds, and is presently being held in escrow by the Attorney, the parties' counsel with respect to the sale of the former marital residence. A dispute was also raised as to the meaning of “taxable income” under paragraph 4 of Article IX of the Stipulation of Settlement, and whether plaintiff has the right to claim B as a dependent exemption on his 2013 tax return, which plaintiff claims he has the right to do because defendant's taxable income for 2013 is under $30,000.
On June 5, 2014, plaintiff filed this action against defendant. Plaintiff's complaint alleges four causes of action. Plaintiff's first cause of action seeks a declaratory judgment with respect to the disputed issues of the Custody Agreement. Plaintiff's second cause of action requests specific performance of the Custody Agreement in the form of a court-ordered access schedule for the 2014 calendar year. Plaintiff's third cause of action seeks a declaratory judgment with respect to the disputed issues of the Stipulation of Settlement. Plaintiff's fourth cause of action requests specific performance of the Stipulation of Settlement in the form of an order directing defendant to authorize the Attorney to release the entire amount held in escrow representing the special assessment imposed by the Condominium Board upon the former marital residence, and directing defendant to execute IRS Form 8332, authorizing him to claim B as a dependent on his 2013 tax return. Defendant interposed a Verified Answer dated July 3, 2014 and filed it on July 8, 2014 (see Plaintiff's Motion, Exhibit E). Accordingly, issued has been joined and a request for summary judgment is appropriate at this time. CPLR 3212(a).
Taxable Income and the Claiming of B as a Dependent
The Parties' Contentions
Plaintiff asserts that pursuant to paragraph 4 of Article IX of the Stipulation of Settlement, he is entitled to claim both of the children as dependents on his 2013 tax returns because defendant's taxable income for that tax year is less than $30,000. He annexes a copy of defendant's 2013 Form 1040 tax return, prepared by defendant's accountant, which shows that defendant's wages were $11,970, that she received maintenance from him in the amount of $30,000, resulting in a total gross income of $41,970, and that, after deductions, her taxable income, as reported on line 43, was $24,136. He further asserts that after this tax return was prepared, defendant produced documentation entitling her to a further deduction for tuition paid, which reduces her taxable income even further. Specifically, plaintiff has annexed a Tuition Statement, which reflects that defendant paid $2,530 in deductible tuition fees in 2013, and an IRS Tuition and Fees Deduction form prepared by defendant's accountant, which shows that this amount is fully deductible by her.
Plaintiff asserts that defendant has taken the position in communications with him that what was meant by the phrase “taxable income” was actually gross income, i.e., total income not reduced by deductions or exemptions, and that she, therefore, maintains the right to claim B as a dependent because her 2013 gross income exceeded $30,000.
Defendant, in response to plaintiff's motion, now concedes that the term “taxable income” as used in the Stipulation of Settlement should be interpreted as referring to the amount which appears on line 43 on IRS Form 1040. While defendant consents to execute an IRS Form 8332 so that plaintiff can claim O as an exemption on his tax returns, she opposes signing this form for B. She contends that the tax form which plaintiff has annexed to his motion papers is merely a draft, and that after consultation with her accountant, she was informed that a gift of $6,000 made to her constitutes “other income,” which must be disclosed on line 21 of Form 1040. She claims that this $6,000 when added to her $24,136 in taxable income results in a taxable income of more than $30,000. Plaintiff, however, has not described the source of this gift or documented its existence, nor has she attached a copy of any revised 2013 Form 1040 tax return. Defendant also does not address the tuition and fees deduction, which would, in any event, result in her having a taxable income of less than $30,000.
Discussion
Since it is undisputed by the parties to the stipulation that the term “taxable income” in the Stipulation of Settlement means “taxable income, as defined by the IRS, i.e., gross reportable income less deductions and exemptions, as reportable on line 43 of Form 1040, plaintiff is entitled to a declaratory judgment to this effect. While defendant, even without any supporting documentation, claims that her income is now higher than previously reported on line 43 of the Form 1040 annexed by plaintiff due to a $6,000 gift to her, it is the gift donor, and not the donee, who is generally responsible for paying the gift tax (see 26 USC § 2502 [c] ), and, in any event, the first $14,000 of any gift for the 2013 tax year is exempt from taxation (see 26 USC § 2503 [b] ). Thus, the alleged gift is not taxable, resulting in defendant's income remaining under the $30,000 threshold. Furthermore, as noted above, defendant's additional deduction for tuition fees would also result in her income being below this $30,000 threshold.
Although defendant's taxable income is admittedly less than $30,000, this fact is not dispositive of the issue. The terms of paragraph 4 of Article IX of the Stipulation of Settlement, states that if the taxable income results in permitting the Plaintiff to declare the Children as dependents, he will be entitled to “... claim all eligible children ...” The Plaintiff has failed to make a prima facie showing that B is an eligible dependent under applicable law. Although the parties may agree that a gross income determination is a threshold requirement, this Court has not been provided with the evidence sufficient to cause the issuance of an Order compelling a party to sign an IRS document. In addition, the movant has failed to provide the Court with a proposed copy of the tax document. Accordingly, that aspect of the relief sought is denied.
The Special Assessment
The Parties' Contentions
Plaintiff contends that the special assessment is encompassed within the term “carrying charges” in paragraph 5 of Article VI of the Stipulation of Settlement, and that, as such, defendant is required to pay the full amount of it. He notes that the Stipulation of Settlement gave defendant the right to exclusive occupancy of the former marital residence until its sale, and that she was given the sole responsibility to pay all carrying charges on it in consideration for this right. He maintains that while special assessments by the Condominium Board were not specifically mentioned in this paragraph, the broad non-exclusive listing of examples of “carrying charges” for which defendant was solely responsible indicates that it encompassed these charges.
Defendant, in opposition, contends that the special assessment was imposed by the Condominium Board in the Spring of 2013, prior to the execution of the Stipulation of Settlement. She annexes a copy of a memo from the Condominium Board dated May 6, 2013, which discusses the imposition of the special assessment. She argues that the intent in the Stipulation of Settlement was to refer to future costs and not past ones.
Defendant further contends that the special assessment was a “necessary extraordinary repair[ ] or maintenance” under paragraph 5 of Article VI of the Stipulation of Settlement, and that, as such, plaintiff is obligated to equally pay the cost of this assessment after she pays the first $1,000 of it. She argues that as the sole occupant of the former marital residence, she was only obligated to pay the costs of regular, recurring items, and that the special assessment was not such a recurring item. She maintains that since the Stipulation of Settlement did not specifically address the division of the special assessment, it should be interpreted against plaintiff, who drafted the Stipulation of Settlement and is an experienced attorney.
Plaintiff, in reply, notes that the memo by the Condominium Board shows that the special assessment was actually imposed on a monthly basis beginning in June 2013, the same month that the Stipulation of Settlement was executed. He further notes that payment of the special assessment was not due prior to the execution of the Stipulation of Settlement on June 26, 2013, as is demonstrated by the language in the memo that full payment of the entire assessment by June 30, 2013 would entitle the payee to a five percent discount.
Plaintiff also points out that defendant's argument that the special assessment was not intended to be encompassed within the term “carrying charges” because it was not a regular, monthly, recurring item is incorrect. The Plaintiff avers that the non-exclusive list of carrying charges for which defendant agreed to be solely responsible for explicitly included repairs, which are an irregular, non-monthly, non-recurring item. Further, Plaintiff notes that the defendant does not deny the fact that the extraordinary repairs or maintenance exception (relating to repairs for which both parties would be responsible) does not apply to repairs imposed on all condominium owners by the Condominium Board in relation to the building's common elements. Plaintiff also points out that the special assessment, which was imposed for repairs designed to remedy leaks, especially benefitted building occupants, such as defendant, as opposed to mere owners.
Plaintiff further asserts that the basis for defendant's claim that any ambiguity in this paragraph should be construed against him is simply false since he had no direct role in drafting the Stipulation of Settlement. Rather, plaintiff points out that he was represented by counsel, as was defendant, and that defendant's counsel actively participated in the preparation of the Stipulation of Settlement, along with his counsel, as demonstrated by an e-mail exchange between counsel, which has been annexed by him.
Discussion
“The terms of a stipulation of settlement that is incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties” (Khorshad v. Khorshad, 121 AD3d 857, 858 [2d Dept 2014] ; see also Ambrose v. Ambrose, 93 AD3d 744, 745 [2d Dept 2012] ; Matter of Moss v. Moss, 91 AD3d 783, 783 [2d Dept 2012] ; Martin v. Martin, 80 AD3d 579, 580 [2d Dept 2011] ). As such, it is “subject to the principles of contract construction and interpretation” (Matter of Meccico v. Meccico, 76 N.Y.2d 822, 823–824 [1990], rearg. denied 76 N.Y.2d 889 [1990] ). In interpreting such a stipulation of settlement, “a court should construe it in such a way as to give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized' “ (Matter of Moss, 91 AD3d at 784, quoting Hyland v. Hyland, 63 AD3d 1106, 1107 [2d Dept 2009] ). “Where such an agreement is clear and unambiguous on its face, the parties' intent must be construed from the four corners of the agreement, and not from extrinsic evidence” (Herzfeld v. Herzfeld, 50 AD3d 851, 851–852 [2d Dept 2008] ; see also Matter of Meccico, 76 N.Y.2d at 824 ; Khorshad, 121 AD3d at 858 ; Ambrose, 93 AD3d at 745 ; Clark v. Clark, 33 AD3d 836, 837 [2d Dept 2006] ).
Defendant's interpretation of the Stipulation of Settlement is not supported by its plain language since extraordinary repairs or maintenance referred only to repairs within the condominium unit for which plaintiff had the right to obtain an estimate for the work to be done from a reputable contractor. The aforesaid language did not refer to repairs to the condominium building's common elements made by the Condominium Board over which plaintiff had no control. Furthermore, the practical interpretation of the term “carrying charges” encompasses a special assessment since it is similar to a common charge and involves a repair to a common element of the condominium building. In addition, as plaintiff contends, the term “carrying charges” specifically encompassed “repairs” which were not regular, recurring items. While defendant contends that the special assessment was already imposed by the Condominium Board prior to the execution of the Stipulation of Settlement, this only serves to support plaintiff's argument that the special assessment was encompassed within the term “carrying charges” since the agreement did not otherwise provide for its exclusion from the charges for which she would be solely responsible.
Thus, in construing the parties' intent from the language of this paragraph of the Stipulation of Settlement, giving fair meaning to all of the language employed by plaintiff and defendant, the practical interpretation of the term “carrying charges” is that it encompassed the special assessment imposed by the Condominium Board for repairs to common areas of the condominium complex (see Skouras v. Victoria Hall Condo., 73 AD3d 902, 903, 902 N.Y.S.2d 111, 112 [2nd Dept, 2010] ). Thus, an order declaring that the Stipulation of Settlement obligates defendant to pay the entire amount of this special assessment in the amount of $11,781.50 and directing the Attorney to release the amount held in escrow by her to the Plaintiff, which represents the amount withheld from plaintiff for this purpose, from the proceeds of the sale of the former marital residence, is warranted as a reflection and enforcement of the agreement of the parties.
The Custody Agreement
The Parties' Contentions
Plaintiff contends that the Custody Agreement was drafted in a manner so as to divide his and defendant's access to the children equally. He notes that the summer recess portion of the Custody Agreement was drafted so as to allow defendant to maintain her practice of taking the children to her native France for a month, while still preserving their division of access to the children equally for the entire year. He states that the two sentences in paragraph (B)(5) of the Custody Agreement beginning with the language “it is the intent of the parties,” which relates to defendant being with the children for a period of up to 30 days from the day after the observance of the July 4th holiday, and of being with him for at least three weeks of August every summer, plus Labor Day weekend in September and with defendant at least one week in August, reflects that these provisions are mere goals or guidelines, and not ironclad requirements. He asserts that the summer recess access schedule, as set forth in the Custody Agreement, is somewhat flexible, requiring him and defendant to confer with each other each year to reach an agreement on how to divide their time with the children, but that the division must take into account the requirement that he spend 183 days with O and that defendant must spend 183 days with B.
Plaintiff further asserts that defendant has taken the position that access to the children is not required to be divided by her having 183 days with B and him having 183 days with O. Plaintiff states that defendant has also taken the position that her one week in August is strictly enforceable, that this week must consist of seven consecutive days and not include the days at the beginning of August that she already has the children during the 30–day period beginning after the July 4th holiday. Plaintiff contends that this is at odds with the terms of paragraph (B)(5) of the Custody Agreement. He also asserts that the Court should direct that he and defendant meet with MS to complete an access schedule for the children pursuant to the Custody Agreement which directs the parties to confer with MS with a view towards apportioning the summer recess to ensure that he spend 183 days with O and that defendant spend 183 days with B.
Defendant, in opposition, argues that this dispute belongs before Justice D in a postjudgment motion for enforcement in the divorce action. She contends that plaintiff cannot seek declaratory relief in this action, but must, instead, seek relief before Justice D. She maintains that plaintiff cannot seek relief in this action because it involves the best interests of the children. She also contends that plaintiff cannot seek specific performance in this action because he must, instead, bring a proceeding to punish her for contempt. She also argues that plaintiff cannot seek to modify the Custody Agreement because he has not shown a sufficient change in circumstances.
Defendant additionally argues that the Custody Agreement required plaintiff to invoke MS, as the parent coordinator prior to March 31, and that he first sent her an e-mail seeking to involve MS on April 24, 2014. She claims that plaintiff, therefore, waived his right to seek the assistance of MS in this matter.
Discussion
Defendant's contention that this dispute over the interpretation of the Custody Agreement regarding the division of access to the children during the summer recess can only be determined by Justice D in a postjudgment motion in the divorce action is entirely devoid of merit. “It is well settled that either party can bring a separate plenary action after the divorce judgment in order to enforce or challenge the terms of a stipulation of settlement which is not merged into the judgment” since “the stipulation of settlement survives as a separate contract” (Sacks v. Sacks, 220 A.D.2d 736, 737 [2d Dept 1995] ; see also Siegel v. Siegel, 197 A.D.2d 569, 570 [2d Dept 1993] ). Here, the Custody Agreement, which was incorporated into the Stipulation of Settlement, but not merged into the Judgment of Divorce, survives as a separate contract which may be properly enforced in this court. This court is a court of plenary jurisdiction (N.Y. Const, art VI, § 7 ), and may properly determine the dispute in this action (see Sacks, 220 A.D.2d at 737 ; Siegel, 197 A.D.2d at 570 )). In this regard, as noted above, both parties reside in Kings County, making venue proper in this county (see CPLR 503 ).
Furthermore, plaintiff does not seek to modify the Custody Agreement, and, thus, defendant's argument regarding the necessity for a showing of a change in circumstances is wholly inapplicable. Plaintiff's request for relief does not involve a determination of a modification of custody, but rather, he seeks to enforce the existing terms of the Custody Agreement. The terms of the Custody Agreement operate as contractual obligations binding upon both parties, and are subject to the principles of contract construction and interpretation, making declaratory relief and specific performance appropriate remedies to resolve the dispute as to the parties' rights under such agreement (see Tamburello v. Tamburello, 113 AD3d 752, 753 [2d Dept 2014] ; Rosenberger v. Rosenberger, 63 AD3d 898, 899 [2d Dept 2009] ).
Defendant does not address the merits of plaintiff's construction and interpretation of the Custody Agreement. With respect to plaintiff's request for relief, the court notes that the Custody Agreement constitutes a contract between plaintiff and defendant “ “subject to the principles of contract construction and interpretation” ‘ “ (Tamburello, 113 AD3d at 753, quoting Ackermann v. Ackermann, 82 AD3d 1020, 1020 [2d Dept 2011], quoting Rosenberger, 63 AD3d at 899 ). “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” (Ayers v. Ayers, 92 AD3d 623, 624 [2d Dept 2012] ; see also Ackermann, 82 AD3d at 1021 ; Rosenberger, 63 AD3d at 899 ). “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” (Ayers, 92 AD3d at 624 ; see also Tamburello, 113 AD3d at 753 ).
Applying these principles here, the court finds that the interpretation proffered by plaintiff mostly reflects the intent of the parties as gleaned from the four corners of the Custody Agreement (see Matter of Meccico, 76 N.Y.2d at 824 ; Tamburello, 113 AD3d at 753 ). However, the terms relating to “weeks” to which the parties are specifically respectively entitled to access to the children during August are not a guideline which may be adjusted in order to ensure each parties' overall right of access. The parties have been specific in their use of terms. The court finds that there is a clear provision of the word “week” which requires that a week time period in August must consist of seven consecutive days. The Court finds that it was not the intent of the parties that the one week time period in August allotted to defendant be counted as part of the 30–day period in which defendant has access to the children following the July 4th holiday. Although the Defendant's week in August is clear, it is an indication of an example of there being a need to revisit schedules based on summer recess access. The number of days in relation to the Plaintiff's access Labor Day weekend “... in September ...” varies from year to year. The days that do not fall within that description are subject to adjustment. Adjustments to accommodate the access by both parties (short of an accord) is an issue best dealt with by MS because it: 1) reduces turmoil, 2) was intended by the agreement and 3) limits controversy in the presence of the children. In effectuating the specific access schedule for the children and in order to resolve any disagreement between the parties with respect to this schedule, an order directing the parties to meet with MS, in accordance with paragraph (M) of the Custody Agreement, is appropriate (see Berg v. Berg, 85 AD3d 952, 954 [2d Dept 2011] ).
The Plaintiff's Labor Day weekend access right specifically and clearly only relates to weekend days in “September,” not August. For example, in the calendar year 2015, assuming defendant has access with the children for a full 30 days after July 4th, and takes her additional week in August immediately thereafter she will have access through August 10, 2015. Plaintiff's three weeks in August will accordingly end on August 31st. Between August 31st and the first weekend day of Labor Day weekend in September (Saturday September 5th) there may be four days in September (September 1, 2, 3, and 4) that are not specifically assigned and could be subject to allocation in accordance with the Custody Agreement, in relation to summer recess. This would depend upon the date that the school year begins. For the calendar year 2014 Labor day fell on September 1st. Pursuant to the Custody Agreement Plaintiff would be entitled to that Monday (September 1st) only, in that the Saturday and Sunday before the first day of September fell in August not September. Notwithstanding that the parties were each able to enjoy an access of 1 week for defendant and three weeks for plaintiff in August 2014. Any days after September 1st and before the first day of school would be subject to adjustment. If after discussion the parties cannot agree the service of MS could be utilized. The Court takes judicial notice of the aforementioned dates.
While defendant relies on the technicality of plaintiff's failure to enlist the assistance of MS by March 31 in arguing that plaintiff can no longer seek MS's assistance, this argument is unavailing. The Custody Agreement simply provides that if either party wishes to amend the summer schedule in any particular year, they should request a meeting with MS no later than March 31 of that year. It does not, however, mandate that plaintiff is precluded from having himself and defendant confer with MS with respect to apportioning the variable summer recess access days with a guideline that plaintiff spend 183 days with O and that defendant spend 183 days with B. As also pointed out by plaintiff, in order to take into account the rest of the year's schedule, the parties must rely in part on the school year calendar because dates such as the first day of school and school recesses vary somewhat from year to year. In fact, as stated in plaintiff's April 24, 2014 e-mail, the 2014–15 school schedule had just been released at that time, which first allowed them to determine the schedule going forward for the rest of the year. Thus, it would not have been possible for MS to assist them to resolve any dispute over the summer schedule without first knowing the applicable dates. Indeed, to interpret the Custody Agreement in this strict and unreasonable manner would thwart the parties' intent, as expressed by the language of this agreement, as well as the very purpose of this provision of having the assistance of a coordinator to resolve differences. The Court does agree at this juncture to permit the parties to utilize MS in accordance with the parenting agreement. However, if the issue is not resolved and there is further Court intervention, the Court may have to revisit the issues of custody and visitation. An equal access schedule may be reasonable but if the parties fail to be reasonable in relation to it the Court could conclude that such an arrangement is not in the best interest of the children. These are children, not chattel and the parties are cautioned accordingly.
Conclusion
Plaintiff's motion is granted to the extent that: (1) It is declared that the term “taxable income” as reflected in the stipulation of the parties means gross reportable income less deductions and exemptions, however the relief requested directing the Defendant to execute IRS Form 8332 is denied; (2) It is declared that the Stipulation of Settlement obligates defendant to pay the entire amount of the special assessment imposed on the former marital residence in the amount of $11,781.50, and defendant is directed to authorize the Attorney (as the holder of the escrow amount from the proceeds of the sale of the Former Marital Residence representing this sum) to release the amount belonging to plaintiff to him within 10 days of Plaintiff's service of a copy of this decision with Notice of Entry upon the Defendant and the Attorney, (3) The parties are directed to meet with MS at a date and time that MS is available, in order to complete an access schedule consistent with this decision and the Stipulation of the Parties.
The Court has conducted a statutory records search pursuant to D.R.L. § 240 1(a–1) in relation to the parties and the children of the marriage.
Plaintiff to serve a copy of this Order with Notice of Entry upon Defendant within ten days of Entry.
The parties are directed to appear before this Court to conference all remaining issues in this action on April XX, 2015 at 9:30 a.m.
The foregoing constitutes the Decision and Order of the Court.