Gay v. GayGay v. Gay
Appeal from an order of the Supreme Court, Onondaga County (Kevin G. Young, J.), entered March 29, 2012 in a divorce action. The order, among other things, directed plaintiff to cooperate with defendant regarding a life insurance policy on plaintiff‘s life and ordered both parties to name their children as beneficiaries on their existing life insurance policies.
It is hereby ordered that the order so appealed from is unanimously modified on the law by providing that the parties’ obligation to maintain life insurance naming the children as beneficiaries ceases upon the termination of their respective
Memorandum: In appeal No. 1, plaintiff appeals from an order that, inter alia, directed him to cooperate with defendant regarding a life insurance рolicy on plaintiff‘s life, and ordered both parties to name the children as beneficiaries on their existing life insurance policies. In appeal No. 2, plaintiff appeals from an order that, inter alia, denied his motion for leave to renew and/or reargue, and granted defendant’s request for attorney’s fees. In appeal No. 3, plaintiff appeals from an order that, inter alia, directed him to sign аny and all authorizations and/or forms necessary to name the parties’ children as beneficiaries of his existing life insurance policy, and to cooperate with defendant in obtaining life insurance on his life. In appeal No. 4, plaintiff appeals from an order granting defendant’s further request for attorney’s fees incurred in opposing a subsequent motion by plaintiff to hold defendant in contempt. Finally, in appeal No. 5, plaintiff appeals from a letter decision advising that the court intended defendant to be the owner of the insurance policy on plaintiff‘s life. We note at the outset that we dismiss the appеal from the order in appeal No. 2 to the extent that it denied leave to reargue (see Empire Ins. Co. v Food City, 167 AD2d 983, 984 [1990]), and we dismiss appeal No. 5 inasmuch as ” ‘[n]o appeal lies from a mere decision’ ” (Meenan v Meenan, 103 AD3d 1277, 1278 [2013]).
In appeal Nos. 1, 2 and 3, plaintiff contends that Supreme Court erred in ordering him to cooperate with defendant in procuring an insurance policy on his life for the benefit of defendant because the parties did not agree to the imposition of such an obligation, nor did they intend to impose one. We reject that contention. It is well settled that “[a]n oral stipulation of settlement that is made in open court and stenographically recorded is enforceable as a contract and is governed by general contract principles for its interpretation and effect” (Argento v Argento, 304 AD2d 684, 684-685 [2003]; see Attea v Attea, 30 AD3d 971, 972 [2006], affd 7 NY3d 879 [2006]; De Gaust v De Gaust, 237 AD2d 862, 862 [1997]). “The role of the court is to determine the intent and purpose of the stipulation based on the examination of the record as a whole” (Argento, 304 AD2d at 685; see Walker v Walker, 42 AD3d 928, 928 [2007], lv dismissed 9 NY3d 947 [2007]; De Gaust, 237 AD2d at 862). “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 [2012]; see Rainbow v Swisher, 72 NY2d 106, 109 [1988]). “Whether a
Hеre, plaintiff acknowledges that the parties’ oral stipulation, which was incorporated but not merged in the judgment of divorce, provides that defendant may purchase insurance on plaintiff‘s life. He contends, however, that the parties agreed that the children, not defendant, would be the beneficiaries of any such policy. We reject that contention. In support thereof, plaintiff relies upon the stаtements of counsel prior to an off-the-record conversation, specifically, the statement of defendant’s attorney that “I didn‘t say anything about the spouse. I said the children only.” That statement, howevеr, is taken out of context. Plaintiff‘s attorney began the discussion about life insurance by stating that both parties possessed life insurance policies, and that each party would retain his or her respectivе policy as separate property “free and clear from any and all claims” of the other party. After a discussion about child support, defendant’s attorney asked plaintiff‘s attorney whether the parties were “going to merge their life insurance for the children as beneficiary till they‘re twenty-one,” and plaintiff‘s counsel replied, “No. That wasn‘t discussed.” After further discussion, plaintiff‘s counsel stated that, in the absеnce of an agreement, the parties could still “nam[e] their children as beneficiaries. There‘s no need to name the other spouse.” Defendant’s counsel replied: “Judge, I didn‘t say anything about the spousе. I said the children only.” The record thus establishes that counsel‘s statements pertained to the parties’ existing life insurance policies and whether the children would be named as beneficiaries on those pоlicies to secure the parties’ respective child support obligations (see
After an off-the-record discussion and the discussion of an unrelated issue, the parties returned to the issue of life insurancе, and agreed that, if “[defendant] wants to take out term insurance on [plaintiff], [plaintiff] will cooperate with any necessary paperwork to do that,” provided that it was at “no cost or expense tо him.” Defendant’s counsel agreed that defendant would “pay for it.” Unlike the earlier discussion about naming the children as beneficiaries on the parties’ existing life insurance polices, the parties’ agreеment clearly contemplates a new policy not in existence at the time of the stipulation. The new policy would be a term life insurance policy as opposed to the parties’ existing, permanent whole life policies. Although
We thus conclude, with respect to appeal Nos. 1 and 3, that the court did not err in ordering plaintiff “to cooperate with the Defendant regarding the life insurance policy on the Plaintiff‘s life, naming the Defendant as beneficiary there[of],” and, with respect to appeal No. 2, that the court did not err in denying that part of plaintiff‘s motion for leave to renew that issue.
Plaintiff further contends in appeal No. 1 that the court erred in requiring the parties to name their children as beneficiaries on their existing life insurance policies. We reject that contention. ”
Finally, we conclude with respect to appeal Nos. 2 and 4 that the court did not abuse its discretion in ordering plaintiff to pay a portion of defendant’s counsel fees (see Zufall v Zufall, 109 AD3d 1135, 1138 [2013], lv denied 22 NY3d 859 [2014]; Reed v Reed, 55 AD3d 1249, 1252 [2008]). The decision to award counsel fees in a matrimonial action is a matter committed to the discretion of the trial court (see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]; Zufall, 109 AD3d at 1138) and, “in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions” (DeCabrera, 70 NY2d at 881). We note that, of the multiple motiоns and cross motions in this matter, the court awarded defendant counsel fees only in connection with plaintiff‘s motion for leave to renew/reargue, which we conclude lacked merit. Otherwise, the court denied both parties’ applications for counsel fees in connection with each of the postjudgment motions. Present—Smith, J.P., Peradotto, Sconiers, Whalen and DeJoseph, JJ.
Timothy D. Gay, Appellant, v Maria Gay, Respondent. (Appeal No. 2.) [987 NYS2d 288—] Appeal from an order of the Supreme Court, Onondaga County (Kevin G. Young, J.), entered October 3, 2012 in a divorce action. The order, among other things, denied plaintiff‘s motion for lеave to renew and/or reargue.
It is hereby ordered that said appeal from the order insofar as it denied leave to reargue is unanimously dismissed and the order is affirmed without costs.
Same memorandum as in Gay v Gay ([appeal No. 1] 118 AD3d 1331 [June 13, 2014]). Present—Smith, J.P, Peradotto, Sconiers, Whalen and DeJoseph, JJ.
Timothy D. Gay, Appellant, v Maria Gay, Respondent. (Appeal No. 3.) [987 NYS2d 287—] Appeal from an order of the Supreme Court, Onondaga County (Kevin G. Young, J.), entered November 16, 2012 in a divorcе action. The order, among other things, directed plaintiff to cooperate with defendant in obtaining life insurance on the plaintiff‘s life.
It is hereby ordered that the order so appealed from is unanimously аffirmed without costs.
Same memorandum as in Gay v Gay ([appeal No. 1] 118 AD3d 1331 [June 13, 2014]). Present—Smith, J.P, Peradotto, Sconiers, Whalen and DeJoseph, JJ.
Timothy D. Gay, Appellant, v Maria Gay, Respondent. (Appeal No. 4.) [987 NYS2d 287—] Appeal from an order of the Supreme Court, Onondaga County (Kevin G. Young, J.), entered November 21, 2012 in a divorce action. The order granted defendant’s request for attorney’s fees and directed plaintiff to pay defendant’s attorney the sum of $2,678.90.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Smith, J.P, Peradotto, Sconiers, Whalen and DeJoseph, JJ.