Opinion
311438/13
04-28-2016
Sione B., Plaintiff, v. Doug B., Defendant.
Donald S. Campbell, Esq., Law Offices of Richard A. Danzig, 1 North Broadway, Suite 1004, White Plains, NY for Plaintiff; Joan Iacono, Esq., Iacono Law Office, 81 Pondfield Road, Suite 8, Bronxville, NY for Defendant.
Donald S. Campbell, Esq., Law Offices of Richard A. Danzig, 1 North Broadway, Suite 1004, White Plains, NY for Plaintiff; Joan Iacono, Esq., Iacono Law Office, 81 Pondfield Road, Suite 8, Bronxville, NY for Defendant.
In this post-judgment application arising from a matrimonial action, the Plaintiff ("Ex-Wife") moves for various forms of relief stemming from the alleged failure of Defendant ("Ex-Husband") to perform certain obligations under the parties' Stipulation of Settlement dated September 3, 2013 ("Agreement"). The Ex-Husband opposes the Wife's application and cross-moves for additional relief in connection with the enforcement of the Agreement.
The crux of each parties' application pertains to their opposing interpretations of the provisions of the Agreement relating to the distribution of the Ex-Husband's Screen Actors Guild Pension ("SAG Pension") and his child support obligations. In January 2016 the Ex-Husband filed a second motion (Motion Sequence No.002) seeking further relief relating to his SAG Pension. Given the confluence of the issues raised, the court shall address both applications in this decision.
The Ex-Wife also moved to hold the Ex-Husband in contempt due to his failure to transfer to her the sum of $129,096.56 from his Johnson Investment Counsel IRA account, including "investment experience," as her distributive share of this marital asset. (Agreement, Article III, ¶ 12[a]). After filing her motion, the Ex-Husband transferred to the Ex-Wife her share of the asset and, ultimately, the accrued interest. Thus, the Ex-Wife received the benefit to which she was entitled under the Agreement and the Ex-Husband effectively purged the possible contempt. Nonetheless, the court may consider the Ex-Husband's delay in effecting the transfer in awarding counsel fees.
The parties married on November 20, 1997. There are two children of the marriage, ages 13 and 10 respectively. The Ex-Wife, age 52, is a homemaker. The Ex-Husband, age 60, is an actor. The parties separated in November, 2011 and began a collaborative divorce process that lasted two years before they entered into the Agreement. (Ex-Wife's Moving Aff., p. 2; Ex-Husband's Cross-Motion, ¶ 3). Each party was represented by counsel. (Agreement, p. 49). Thereafter, the Wife commenced this divorce action on September 27, 2013 and the Agreement was incorporated but not merged into the Judgment of Divorce that was entered on April 4, 2014.
A settlement agreement entered into by spouses in contemplation of divorce is accorded the same presumption of legality as any other contract and can only be enforced according to its plain and ordinary meaning. (See, Bloomfield v. Bloomfield, 97 NY2d 188 [2001]). "When interpreting a contract, such as a separation agreement, the court should arrive at a construction that will 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 Schiano v. Hirsch, 22 AD3d 502 (2d Dept. 2005). THE SAG PENSION
The Ex-Husband earns income by recording commercial taglines. He receives residual payments each time a commercial he recorded is played. These residuals are paid into his SAG Pension. In addition to the residuals, earnings for recording sessions are also paid into the SAG Pension (Ex-Husband's cross-motion, p.2). Unlike a retirement pension, the Ex-Husband receives distributions from the SAG Pension, even though he is not retired, based on credits he receives from the residual and session payments. In settling the case, the parties agreed to a distribution to the Wife of a portion of the SAG Pension. They also agreed to use the services of a neutral accountant, Robert Guarnera, to assist in determining the value of the distribution to the Ex-Wife. The Agreement provides: ARTICLE III 12. Retirement Accounts:
C. The Husband maintains a pension with Screen Actors Guild (the "Husband's SAG Pension").
(i)The parties shall cooperate in the preparation of a separate interest Domestic Relations Orders, so that the Wife shall receive a fifty percent (50%) share of the benefit up to and including August 1, 2013, determined in accordance with the New York Court of Appeals Decision in the (sic) Majauskas v. Majauskas, to wit: the benefit multiplied by a fraction where the numerator is the number of years and/or months the Husband worked during the marriage. The denominator is the total number of years, partial year and/or months of credit service to retirement. The parties shall equally share the cost of the preparations of such QDRO.
(ii)The parties shall immediately submit a certified separate interest Domestic Relations Order to effectuate this provision. The parties shall cooperate in the event that any amended QDRO may have to subsequently submit.
(iv)The Husband agrees to cooperate and take those steps necessary to effectuate this provisions within 60 days from the date of execution by both parties of this Agreement, although the parties acknowledge that the transfer cannot be completed until an action for divorce has been commenced. The parties agree that said distribution to the Wife shall take place pursuant to a QDRO or other Order prepared by Robert Guarnera and they shall be equally responsible for all costs associated with the preparation and filing of such QDROs or other Orders
(vi)Until the transfer of this interest to the Wife, and the commencement of payments to the Ex-Wife, the Husband shall pay to the Wife her portion of the SAG pension, or $1,639.42 by the 5th day of each month, beginning August 1, 2013. Said payment shall be deemed spousal maintenance to the Wife and shall be taxable to the Wife and deductible by the Husband. The Wife is required to include the payments made pursuant to this paragraph in her income for income tax purposes (and Wife agrees to report said sums) and the Husband is entitled to deduct said payments on his income tax returns. Said payment to the Wife shall be prorated in accordance with the date of commencement of payment to the Wife by SAG.
It is undisputed that, in accordance with the terms of the Agreement, Richard Guarnera prepared a QDRO ("Guarnera QDRO"). Each party agrees that pursuant to the Guarnera QDRO, the Ex-Wife will receive $1,639.42 per month as her share of the SAG Pension (Ex-Husband's Aff., Cross-Motion, ¶ 30; Ex-Wife Reply Aff., ¶ 14). The Ex-Husband acknowledges that he has paid the Ex-Wife $1,639.42 each month in reliance on Mr. Guarnera's calculation. The Ex-Wife submitted the Guarnera QDRO to the Ex-Husband in October 2014, but he refused to sign the document.
The Ex-Wife now seeks to have the Ex-Husband held in contempt (DRL §245; Judiciary Law § 753) for failing to sign the Guarnera QDRO. (Ex-Wife's Moving Aff.,¶ 10). The Ex-Husband admits he did not sign the Guarnera QDRO because he claims it contains a flawed calculation. He contends that it would provide distributions to the Ex-Wife based on residuals he received during the marriage but which were derived from work he performed before the marriage. Therefore, the Ex-Wife would improperly receive money derived from his pre-marital earnings in violation of the Majauskas formula as set forth in the Agreement. (Ex-Husband's Cross-Motion, ¶ 31). He asks that the court direct the Ex-Wife to cooperate in the submission of a QDRO that properly reflects the "marital portion" of the Ex-Husband's SAG Pension which he claims, based on an analysis performed by his own accountant, would be approximately $270 per month. The Ex-Wife responds that the Ex-Husband is attempting to re-write the Agreement in an effort to deprive her of the distribution she bargained for. (Ex-Wife's Sur-Rely,¶ 13). She maintains that the Guarnera QDRO reflects the express terms of the Agreement, which she claims the Ex- Husband ratified by paying the Ex-Wife her marital share of the pension ($1,6349.42) each month as additional spousal maintenance. She asks that the court enforce the Agreement and enter the QDRO prepared by Mr. Guarnera.
The Ex-Husband recorded a commercial for South West Airlines two weeks prior to the marriage and that he earned pension credits during the marriage that were derived from that commercial for two years. The Ex-Husband argues that any money derived from that commercial should be excluded as his separate property. However, it is also not disputed that prior to signing the Agreement, Mr. Guarnera performed an analysis of the amount of distribution the Ex-Wife would be entitled to receive in which he included residual pension credits earned during the marriage but derived from the South West Airlines jingle. His calculations were based on a 50% distribution to the Ex-Wife of the SAG Pension credits received by the Ex-Husband in accordance with the Majauskas formula from the date of marriage to August 1, 2013, the proposed cutoff date. Based on his calculation, the parties agreed that the Ex-Wife would receive a monthly distribution of $1,639.42. That specific amount was included in the terms of the Agreement: "Until the transfer of this interest to the Wife, and the commencement of payments to the Wife, the Husband shall pay to the Wife her portion of the SAG pension, or $1,639.42 by the 5th day of each month by SAG, beginning August 1, 2013." (Agreement, Article III, ¶ 12 (C) (vi). The Ex-Husband concedes that he has paid and continues to pay the Ex-Wife this amount each month.
The Ex-Husband's temporary payment of this amount to the Ex-Wife was treated as additional maintenance, apparently providing the Ex-Husband some tax relief. The temporary payment by $1,639.42 to the Ex-Wife was in addition to the regular agreed upon spousal maintenance paid to the Ex-Wife in the amount of $1,500 per month through February, 2020. (Agreement, Article II).
The court finds that the Agreement is clear and unambiguous and supports the conclusion that the Guranera QDRO accurately reflects the terms of the Agreement. Mr. Guarnera conducted a valuation of the pension and determined the amount the Ex-Wife would be entitled to receive, basing the distribution on pension credits earned by the Ex-Husband during the marriage even though derived at least in part from a commercial he recorded prior to the marriage. The Agreement made no distinction between credits earned based on pre-marital work as opposed to credits arising from work first performed during the marriage. In effect, the Agreement provides that if the pension credit was received during the marriage, it is marital property subject to distribution. The Guarnera QDRO comports with the Majuaskas formula since it limits the distribution to the Ex-Wife to pension credits received during the marriage. Gursky v. Gursky, 93 AD3d 1127 (3d Dept 2012). The parties were fully apprised of this fact since the Agreement included the specific amount it was anticipated the Ex-Wife would receive based on Mr. Guarnera's analysis. The Ex-Husband cannot now claim surprise or mistake, especially since he repeatedly ratified this particular provision for almost a year by paying to the Wife the anticipated distribution reflected in the Agreement before he first claimed a mistake had been made. Luftig v. Luftig, 239 AD2d 225 (1st Dept. 1997). Moreover, as the Ex-Wife correctly points out, she waived any claim to pension credits accrued after the cutoff date that might be derived from new work performed by the Ex-Husband during the marriage. By reaching the agreement to rely on pension credits received from the date of marriage to the cutoff date, the immediate entry of a QDRO became possible and each party knew the exact amount of the distribution to the Ex-Wife. The Ex-Husband argues that since the Agreement provides for cooperation in filing an amended QDRO if necessary, this language suggests that the parties recognized the possibility of a mistake in the calculation. His interpretation is unsupported by the language of the Agreement or any facts offered by the Ex-Husband regarding that provision (Agreement, Article III ¶ 12 (c) (ii)). The plain meaning of that contractual provision is that if the QDRO required revision based on the requirements of SAG or the court, the parties would cooperate to file an amended QDRO, not that an amended QDRO would reflect new terms. Moreover, the vast disparity between the anticipated monthly pension payments the Ex-Wife would receive pursuant to the Agreement ($1,639.42) and what she would receive if the Ex-Husband's present calculation is credited ($270) is hardly the type of mistake one would likely overlook. This Agreement was entered only after a significant amount of time was spent negotiating its terms with independent counsel. The fact that the Ex-Husband may now believe he made a "bad deal" is no basis to relieve him of a contractual obligation Brod v. Brod, 48 AD3d 499 (2nd Dept. 2008). The parties shall submit the QDRO prepared by Robert Guarnera along with a copy of this Decision and Order to the SAG Pension Plan administrator to effectuate the transfer to the Ex-Wife of her distributive share of the Ex-Husband's SAG Pension. Once approved by the Pension Plan Administrator, the QDRO shall be submitted to this court for entry. Upon commencement of payment by SAG to the Ex-Wife of her share of the SAG Pension, the monthly payments by the Ex-Husband to the Ex-Wife of $1,639.42 shall cease. The Ex-Wife's application to hold the Ex-Husband in contempt for his failure to consent to the entry of the Guarnera QDRO as required under the Agreement is denied. There is no indication that the Ex-Wife gave the Ex-Husband requisite notice of default as required under the Agreement. (Agreement, Article XV). He has been paying the Ex-Wife her share of the pension each month since August, 2013 as required under the Agreement. The Ex-Wife has accepted payment each month. The Wife has not demonstrated how her rights have been impaired by the delay in the submission of the QDRO.
The proposed Guarnera QDRO reads in relevant part: "The Alternate Payee (Ex-Wife) is assigned 50% of the Participant's ("Ex-Husbands") accrued benefit, multiplied by a fraction. The numerator of the fraction is the number of years of Pension Credit (as defined in the Plan) earned by the Ex-Husband between December 20, 1997 and December 31, 2009. The denominator of the fraction is the total number of years of Pension Credit earned by the Participant at the date the Participant commenced benefits. In computing the numerator of the fraction, the Pension Credit for the year of marriage and the year of separation shall be pro-rated on a daily basis. The calculation of the benefit payable pursuant to the above mentioned provision shall include a pro-rata share of any cost-of-living adjustment or increase that may apply to the Participant payable by the Plan or any early retirement subsidy if the Alternate Payee's annuity starting date is concurrent with the Participant. The Alternate Payee's benefit will include any amendments increasing benefits that include credited service during the above period." (Ex-Wife's Moving Aff., Ex. B).
The court notes that there may be tax consequences to the Ex-Wife as a result of the delay in transfer. However, the Ex-Wife did not raise this issue in her papers.
CHILD SUPPORT
Basic Child Support
The Ex-Wife contends that in violation of the Agreement, the Ex-Husband unilaterally reduced his child support obligations as of August 1, 2014. She moves to enforce the Ex-Husband's child support obligations under the Agreement and to hold the Ex-Husband in contempt. She seeks a money judgement for arrears she claims have accrued under the Agreement and asks that future support payments be made by the Ex-Husband through the Support Collection Unit ("SCU"). The Ex-Husband contends that he has paid, and continues to pay the correct amount of basic child support pursuant to the terms of the Agreement. Article VIII, Paragraph 1 of the Agreement provides in relevant part:
A.Commencing as of August 1, 2013 and continuing through the emancipation of the second Child, the Husband shall pay to the Wife for the support of the Children the annual sum of Eighteen Thousand ($18,000) Dollars (hereinafter referred to as "Basic Child Support"). The Basic Child Support shall be paid to the Wife in equal installments at the rate of Fifteen hundred ($1,500.00) per month, payable on or before the 1st of each month via direct deposits into a bank account to be designated by the Wife. Upon the emancipation of the first Child, the Husband's then Basic Child Support Obligation shall be reduced by 32%. . . .
B.Beginning August 1, 2014 and every year thereafter, the Husband's Basic Child Support Obligation shall be an amount equal to 25% (reduced to 17% upon the emancipation of the first Child) of his previous year's Child Support Standards Act (CSSA) annual income, up to an annual cap of $325,000, excluding the Husband's annual AFTRA pension income, and then calculated pursuant to the CSSA. Then, his Basic Child Support obligation shall be adjusted on August 1st of every year thereafter. The Husband shall, upon request, provide documentation to the Wife of his income for the relevant year, including the relevant Federal tax Return. In addition, the parties agreed that the Ex-Husband would pay 60% and the Ex-Wife would pay 40% of the children's delineated "add-on" expenses (Agreement, Article VIII, ¶¶ 4, 5), except for college which would be paid from the Ex-Husband's generation skipping trust (Agreement, Article VIII, ¶ 6).
The Agreement appropriately set forth the CSSA calculations indicating that the Ex-Wife's income was $34,220 and the Ex-Husband's income was $95,474.72. Although the presumptive basic child support amount under the CSSA would obligate the Ex-Husband to pay $1,999.46 per month and 74% of the children's add-on expenses, the parties agreed to deviate from this amount, taking into account the parties' respective incomes, their joint custody arrangement, as well as the fact that the children's add-on expenses are adequately provided for. (Agreement, Article VIII, ¶ 9).
Neither side disputes that the Ex-Husband paid the Ex-Wife $1,500 per month from August 1, 2013 through July 31, 2014 in accordance with the Agreement. On August 1, 2014, the Husband reduced his Basic Child Support payment to $1,096.58, claiming the reduction was due to his reduced income for 2013 in accordance with the terms of the Agreement. One year later, he hired an accountant to calculate his Basic Child Support for 2015, utilizing the Ex-Husband's 2014 and the Ex-Wife's 2013 federal tax returns. Based on the accountant's calculation, the Ex-Husband reduced his Basic Child Support payment to $1,091.67 on August 1, 2015. He continues to pay 60% of the children's add-on costs as provided under the Agreement.
The Ex-Wife claims that the Ex-Husband's calculations are incorrect. First, relying solely on his income reported on his tax returns, she contends that his Basic Child Support obligation was $2,069.45 for 2014 and $1,899.25 for 2015. She also contends that the Ex-Husband failed to include money he received from other sources that, while not reported as income on his tax returns, is considered income under the CSSA. For instance, the Ex-Husband has an interest in a generation skipping trust from which he may receive funds. Moreover, he holds an interest in a corporation called Dog Ballard, Inc. from which he may receive non-income benefits (Ex-Wife's Sur-Reply, p.6). She also claims that the Ex-Husband did not include $300,000 he received in connection with the sale of stocks, bonds and securities in 2013 (Plaintiff's OSC, ¶23; Ex. F). She contends that the Agreement requires that the amount of Basic Child Support to be paid by the Ex-Husband each year is based on the CSSA definition of income which is broader than income reported on a tax return. The Ex-Husband claims that child support was to be limited solely to the amount of income reported on his past year's federal tax returns. While the Ex-Husband claims he reports, on average, $94,000 per year on his tax returns, this amount fails to take into account "losses" on real estate and unreimbursed business expenses that he claims he is entitled to deduct under the CSSA and the Agreement. (Ex-Husband's Sur-Reply, ¶ 4). He claims that Doug Ballard, Inc. was dissolved in 2010 and denies receiving $300,000 from stock sales in 2013. (Ex-Husband's Sur-Reply, pp. 3-4). The court notes that his 2013 federal tax return indicates a stock sale of $300,000 (Ex-Wife's Aff., Ex. F).
The court is obligated to interpret a settlement agreement reached by the parties by discerning their intent from within the four corners of an agreement. Rainbow v. Swisher, 72 NY2d 106 (1988); Omanoff v. Rohde, 129 AD3d 510 (1st Dept. 2015). If the parties' intent cannot be ascertained from the agreement, a hearing is required to determine the parties' intent. Boster-Burton v. Burton, 92 AD3d 909 (2d Dep't. 2012). From a reading of the terms of the Agreement, the court concludes that the provisions relating to the Ex-Husband's Basic Child Support Obligation are ambiguous. The Agreement contains conflicting provisions and no clear method for the mandatory annual recalculation of the Ex-Husbands Basic Child Support obligation.
Paragraphs 1 (A) and 1 (B) of Article VIII are in conflict. In paragraph 1 (A) the Basic Child Support obligation is calculated as $1,500 per month through the emancipation of the second child, but with a reduction when the first child is emancipated. If this provision was intended to cover only one year of the Ex-Husband's child support obligation, it is unclear why it contains emancipation language. The court cannot discern whether the parties' intended Paragraph 1 (B) to modify Paragraph 1 (A) or whether these paragraphs were intended to be separate, consecutive obligations. Plainly there is an ambiguity when the two paragraphs are read together. Steckler v. Steckler, 78 AD2d 818, (1st Dept. 1980).
It is also unclear from a reading of Paragraph 1(B) what source of funds are to be included in calculating the Ex-Husband's income each year. The language of the Agreement states that the Ex-Husband's support obligation was to be established on August 1st of each year based on his prior year's income. The Agreement does not define the term "income" but the first sentence of Paragraph 1(B) references that the Ex-Husband's Basic Child Support obligation would be calculated pursuant to the CSSA. To determine the annual change, the Ex-Husband was to provide to the Ex-Wife at her request, "his income for the relevant year, including his federal tax return." (Emphasis added.) Under the CSSA, income includes not only gross income as should have been or should be reported in the most recent federal income tax return (DRL § 240[1-b[[b][5][i]), but also income that might not be reported on the tax return (e.g. investment and deferred income, perquisites, fringe benefits, annuities, etc.) (DRL §§ 240 [1-b] [b] [5] [ii], [iii], [iv], [v]. [vi]). Thus, a fair reading of the Agreement suggests that the Ex-Husband's income from all sources, except his AFTRA Trust income, was to be considered. Since the Ex-Husband's income appears to come from several sources, understanding the parties' intent in this regard is critical. Moreover, the Ex-Husband based his recalculation of his Basic Child Support using the Wife's income from 2013. Yet the Agreement makes no reference to any consideration of the Wife's income in making future calculations. A court may not write into a contract conditions not expressly inserted. Korosh v. Korosh, 99 AD3d 909 (2nd Dept. 2012). In sum, the Agreement does not provide a clear mechanism for determining the income to be relied on each year in calculating the Ex-Husband's Basic Child Support obligation.
The Agreement and motion papers are devoid of any evidence that might enable the court to determine the parties' intent at the time they entered into the Agreement. (See, Ayers v. Ayers, 92 AD3d 623 at 625 [2d Dep't. 2012]). The parties have divergent opinions as to the operation of the support provisions under the Agreement and the circumstances under which the contract was executed. While the Agreement sets forth both parties' 2011 gross income figures for purposes of calculating the presumptive amount of child support, it does not indicate what sources of income were included in the calculation.
While the Ex-Wife alleges, in a footnote of her supplemental papers, that neither business nor investment expenses were deducted from the Ex-Husband's income under the Agreement for purposes of calculating child support, she provides no corroborating proof or information for the court to consider. (Ex-Wife's Sup. Aff.,p. 7). The only deductions mentioned in the Agreement relate to Medicare and FICA taxes paid. (Agreement, Article VIII, ¶ 9)
Accordingly, the court will set this matter down for a hearing to determine if the parties' intent with respect to the operation of Article VIII, Paragraph 1 can be ascertained. If not, the Ex-Husband's basic child support obligation shall be determined de novo. The case will be calendared on June 20, 2016 to address discovery issues.
In light of the ambiguity in the Agreement regarding the Ex-Husband's Basic Child Support obligation, that branch of the Ex-Wife's motion seeking to hold the Ex-Husband in contempt for failing to comply with those provisions in the Agreement is denied. (Salinger v. Salinger, 125 AD3d 747 [2nd Dept. 2015]).
Add-On Expenses
The parties' Agreement requires the Ex-Husband to pay 60% and the Ex-Wife to pay 40% of the children's delineated unreimbursed medical expenses, extra-curricular, sports and after-school activities and summer camp (Agreement, Article, VIII, ¶¶ 4, 5). Neither party disputes that the Ex-Husband has paid and continues to pay 60% of these costs for the children. However, the Ex-Wife argues that the Agreement requires that the percentage obligations for these add-on costs are to be recalculated each year in accordance with the CSSA.
The court finds that the Agreement is clear and unambiguous that the Ex-Husband's obligation for certain add-on expenses was limited to 60% of those costs. Unlike for his Basic Child Support obligation, there is no provision for a recalculation each year of his percentage contribution for add-on expenses. The terms of the Agreement complies with the statutory mandate to set forth the calculation of child support under the CSSA and the reason for any deviation. DRL § 240 (1-b) (h); Agreement, Article VIII ¶ 8. Pursuant to the CSSA, the Husband's obligation for add-on costs would have been 74%. The Agreement sets forth with specificity the reason why the parties deviated from that result. (Agreement, Article VIII, ¶ 9(h)). A plain reading of the Agreement results in a finding that the unambiguous intent of the parties was to set the Ex-Husband's obligation for certain add-on costs at 60% until the children are emancipated. Therefore, the branch of the Ex-Wife's motion seeking to recalculate the parties' respective obligations for the children's add-on costs under the Agreement is denied.
Notably, the Husband agreed to pay 100% of the children's medical insurance (Agreement, Article IX) and 100% of the children's college costs up to a SUNY cap. (Articles VIII).
As an additional factor, the parties' specifically opted out of the modification requirements of DRL § 236. The Wife does not claim that an unanticipated or unreasonable change of circumstances has occurred such that the children's needs are not adequately met. Matter of Brescia v. Fitts, 56 NY2d 132 (1982), citing Matter of Boden v. Boden, supra at 213.
The Support Collection Unit
The Ex-Wife requests an Order directing that the Ex-Husband's Basic Child Support payments be made through the SCU, claiming that his payments are routinely late. The Agreement directs that payment shall be made to the Ex-Wife on or before the first day of each month by direct deposit into the Ex-Wife's designated bank account. (Agreement, Article VIII, ¶ 1 (A)). The Agreement further provides that: "As long as each party is current on his/her financial obligations, each party waives his/her right to have any and all child support payments made (through the Support Collection Unit or by an Income Deduction Order)." (Agreement, Article VIII, ¶11). The Ex-Husband argues that there is no need for SCU intervention since his payments are not habitually late. He claims that he issues a check on or about the first of each month and that it is cashed within a week. Moreover, he contends that during the mediation process the Ex-Wife agreed that it would be acceptable if support payments were received by the 10th day of each month. (Ex-Husband's Sup. Aff., ¶ 10).
The Agreement explicitly states that the Ex-Husband is to direct deposit payments into the Ex-Wife's designated account by the first day of each month. The Ex-Husband cannot seek to contravene this provision of the Agreement even if the parties' past practices allowed for a different method of payment. Of course, the Ex-Wife must also cooperate to enable the Ex-Husband to comply with the direct deposit requirement. Accordingly, with the Ex-Wife's cooperation, the Ex-Husband shall within sixty days from the date of this Decision and Order without notice of entry, arrange for the direct deposit by the first day of each month of his Basic Child Support payment to the account designated by the Ex-Wife. If the Ex-Husband fails to do so, the Ex-Wife may seek an order, on notice, to have the Ex-Husband's Basic Child Support collected by the SCU.
MOTION SEQUENCE 2
The Ex-Husband seeks to compel the release of pension funds being held in escrow by the SAG pension plan. According to the Ex-Husband, commencing February 1, 2015, SAG held $983.69 per month in escrow, pending issuance of the QDRO, to protect the Ex-Wife's interests in the pension. He asks that upon issuance of the QDRO, SAG should release the funds held in escrow to him. The Ex-Wife does not dispute that the funds held in escrow by SAG belong to the Ex-Husband since he has paid to her on a monthly basis the amount she would receive pursuant to the Guarnera QDRO. If SAG were to pay to her the funds held in escrow she would receive a benefit to which she is not entitled. Nonetheless, she asks that these funds be held in escrow to pay any future child support arrears that accumulate pending this court's decision. (Motion Seq. 002, Ex-Wife's Opp., ¶4).
Neither party adequately explains why SAG determined to escrow this particular amount. --------
The Ex-Wife's request is denied. The court cannot determine at this time if the Ex-Husband owes any child support arrears. The Ex-Husband has paid each month the Basic Child Support he believes he owes. A hearing will be held to determine the correct amount of child support the Ex-Husband was obligated to pay dating back to August 1, 2014. However, there is no evidence that he is in arrears based on his calculations. The Ex-Wife claims, based on her calculations, that the Ex-Husband is in arrears in the amount of $13,289.60 (as of September 21, 2015) (Campbell Supp. Aff., ¶ 10). In the event child support arrears are owed, the court is satisfied that the Ex-Wife can recoup those arrears from the various sources of income available to the Ex-Husband (e.g. pensions) should he fail to pay the amount owed.
Thus, upon the commencement of distribution to the Ex-Wife of her share of the SAG pension pursuant to the Garnera QDRO, the parties shall instruct SAG to release the pension funds held in escrow for the benefit of the Ex-Wife to the Ex-Husband.
COUNSEL FEES
Each party requests an award of counsel fees pursuant to DRL§§ 237, 238, 245 and the parties' Agreement. The Ex-Husband provides no billing records for the court to consider. Therefore, his request is denied. The Ex-Wife's billing records reveal that she has incurred $23,306.46 in legal fees and costs in connection with this litigation. (Ex-Wife's Sur Reply, Ex. C). Under the Agreement, a party who obtains a judgement, decree or order in his or her favor in connection with the enforcement of the Agreement is entitled to counsel fees provided that that the prevailing party sent notice of said default to the other party prior to seeking court intervention. (Agreement, Article XV). Here, it is unclear if either party sent a notice of default However, it is clear the Ex-Wife is the prevailing party to the extent of the Ex-Husband's unilateral delay in transferring to the Ex-Wife her share of his Johnson Investment Counsel IRA and his failure to cooperate in signing the Guarnera QDRO. Moreover, it is undisputed that the Ex-Husband is the monied spouse. DRL § 237. However, the Ex-Wife has not been entirely successful in her application since a hearing is necessary with respect to the issue of the amount of Basic Child Support the Ex-Husband is obligated to pay. Moreover, the Ex-Wife's position to recalculate the percentage obligation of the children's add-on expenses was rejected. Upon consideration of all of these factors, the court awards counsel fees to the Ex-Wife in the amount of $10,000. DeCabrera v. Decbrea-Rosete, 70 NY2d 879 (1987). The Ex-Husband shall pay $10,000 to the Ex-Wife's attorney, Donald S. Campbell, Esq, Law Offices of Richard A. Danzig, One North Broadway, Suite 1004, White Plains, New York 10601, within 60 days of the date of this Decision and Order without notice of entry. In the event said payment is not made, the Ex-Wife's attorney shall, upon notice, cause the clerk of the court to enter a money judgment against the Ex-Husband and in favor of the Ex-Wife's attorney in the unpaid amount, plus interest.
Accordingly, it is: ORDERED, that the Ex-Wife's applications to hold the Ex-Husband in contempt are denied; and it is further ORDERED, that the parties shall submit the QDRO prepared by Robert Guarnera along with a copy of this Decision and Order to the SAG Pension Plan administrator to effectuate the transfer to the Plaintiff of her distributive share of the Defendant's SAG Pension. Once approved by the Pension Plan Administrator, the QDRO shall be submitted to this court for entry. Upon commencement of payment by SAG to the Plaintiff of her share of the SAG Pension, the monthly payments by the Defendant to the Plaintiff of $1,639.42 shall cease; and it is further ORDERED, that a hearing shall be held to determine the parties' intent with respect to the annual recalculation of Defendant's Basic Child Support obligation pursuant to Article VIII, Paragraph 1 of the Agreement and the amount of arrears owed, if any, retroactive to August 1, 2014. If the parties' intent cannot be determined, the Defendant's basic child support obligation shall be determined de novo retroactive to August 1, 2014. The parties and their counsel shall appear in Part 31 at 9:30 a.m. on June 20, 2016 to address any discovery issues related to the ordered hearing; and it is further ORDERED, that with the Plaintiff's cooperation, Defendant shall within sixty days from the date of this Decision and Order without notice of entry, arrange for the direct deposit by the first day of each month of his Basic Child Support payment to the account designated by Plaintiff. If Defendant fails to do so, Plaintiff may seek, on notice, an order to have Plaintiff's Basic Child Support payments collected by the Support Collection Unit; and it is further ORDERED, that the Plaintiff's application to recalculate annually the parties' respective percentage obligations for the children's add-on expenses is denied; and it is further ORDERED, that upon commencement of the monthly distribution to Plaintiff of her share of the SAG Pension pursuant to the Gaurnera QDRO, the parties shall instruct SAG to release the pension funds held in escrow by SAG for the benefit of the Plaintiff to the Defendant. Plaintiff's application to hold said funds in escrow is denied; and it is further ORDERED, that Defendant shall pay $10,000 to Plaintiff's attorney, Donald S. Campbell, Esq., Law Offices of Richard A. Danzig, One North Broadway, Suite 1004, White Plains, New York 10601, within 60 days of the date of this Decision and Order without notice of entry. In the event said payment is not made, Plaintiff's attorney shall cause the clerk of the court to enter a money judgment against the Defendant for the unpaid amount, plus interest; and it is further
ORDERED, that any relief not specifically granted is denied. This constitutes the decision and order of the court. Dated: April 28, 2016
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Laura Drager, J.S.C.