Weaver v. WeaverWeaver v. Weaver
Stanton E. Weaver, Canajoharie, appellant pro se.
Becker, Glynn, Muffly, Chassin & Hosinski LLP, New York City (William H. Newman of counsel) and Pro Bono Appeals Program, Buffalo (Johnathan S. Reiner of counsel), for respondent.
Reynolds Fitzgerald, J.
Appeals (1) from an order of the Supreme Court (Tomlinson, J.), entered March 12, 2020 in Fulton County, which, among other things, (a) denied plaintiff‘s motion for leave to renew and, upon reargument, adhered to its prior finding, and (b) granted defendant‘s motion for enforcement of the provision in the judgment of divorce regarding plaintiff‘s pension, and (2) from an order of said court, entered May 26, 2020 in Fulton County, which granted defendant‘s motion
The parties were married in April 1998 and have one child (born in 2003). In September 2017, plaintiff (hereinafter thе husband) brought an action for divorce against defendant (hereinafter the wife). On the day of trial, the parties placed an opting out agreement on the record, which settled matters concerning spousal maintenance, child support and distribution of personal and rеal property. In December 2018, Supreme Court (Skoda, J.) granted a judgment of divorce that incorporated, but did not merge, the agreement.
The agreement provided, as relevant here, that the husband was entitled to stay in an apartment located at the matrimonial residence for six months, at $500 per month, with proration of said rent and refund of any overpayment to the husband on the event of his relocation. It further provided that the wife was entitled to 50% of the marital portion of the husband‘s pension benefits based on the Majauskas formula. To that end, the agreеment directed that the wife submit a qualified domestic relations order (hereinafter QDRO) and, upon the employer‘s approval of said QDRO, that the husband immediately make application for his pension. As to the husband‘s monthly support obligations, the agreement directed speсified sums for spousal maintenance and child support from November 10, 2017 through March 1, 2018, at which point the obligations would increase. Lastly, the agreement acknowledged that the husband‘s maintenance and child support obligations would require revision after December 19, 2018, the datе on which the husband‘s full salary would come to an end and the husband would receive either his disability pension and/or long-term disability benefits. However, the agreement specifically provided that the husband would continue to make payments in the amounts stated in the agreement until new amоunts had been agreed to by the parties or court intervention.
By order to show cause dated January 2019, the husband,
By October 2019 order, Supreme Court (Tomlinson, J.) awarded the wife the snowblower and the gаs grill and denied the husband‘s request for reimbursement of snow removal expenses and a refund of the rent. The court further determined that the husband owed the wife spousal maintenance and child support arrears. Lastly, the court awarded the wife counsel fees.
The husband subsequently movеd for leave to renew and/or reargue, particularly challenging the denial of the rent refund, calculation of maintenance and child support arrears and the award of counsel fees. The wife cross-moved for counsel fees and related costs, as well as sanctions against the husband based upon his alleged frivolous conduct. Meanwhile, the wife filed an order to show cause dated December 2019, seeking, among other things, to enforce the terms of the divorce judgment by directing the husband to immediately apply for his disability pension, as well as counsel fees. The husband opposed the wife‘s order to show cause.
In a March 2020 order, Supreme Court denied the husband‘s motion to renew and/or reargue in its entirety and granted the wife‘s show cause application to require the husband to immediately apply for his disability pension, and further granted the wife‘s request for counsel fees, subject to a future hearing. In May 2020, following said hearing, Supreme Court awarded the wife counsel fees and disbursements in the sum of $7,590.50. The husband appeals from both the March 2020 and May 2020 orders.
Although
A perusal of the record confirms that the husband failed to present any new facts in support of this motion and, as such, despite its designation as a combined motion, it is, in fact, exclusively a motion to reargue (see DeMaille v State of New York, 166 AD3d 1405, 1408 [2018]). “Although, generally, no appeal liеs from an order denying a motion to reargue, where the court actually addresses the merits of the moving party‘s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied” (Matter of Manufacturers & Traders Trust Co. v J.D. Mar. Serv., 187 AD3d 1249, 1251 [2020] [internal quotation marks and citations omitted]; see Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1184 [2015], lv denied 25 NY3d 912 [2015]). A review оf the March 2020 order reveals that, although Supreme Court noted the husband‘s defects and deficiencies in his unsworn pleadings and stated that it was denying the motion, the court did consider and address his arguments. As such, the March 2020 order is appealable as of right (see
Turning to the merits, the husband claims that he is entitled to a refund of the rent as he left the apartment at a certain date and any items left behind were mere detritus and do not constitute “occupancy” for rental purposes. By its October 2019
Next, in reference to Supreme Court‘s determination pertaining to child support, spousal maintenance and arrears, the husband disputes the amounts, alleges calculation errors and requests certain credits and refunds. As the husband failed to set forth how Supreme Court overlooked or misapprehended thе facts or law or mistakenly arrived at its earlier decision, we find that Supreme Court properly adhered to its original determination (see Galway Co-Op.Com, LLC v Niagara Mohawk Power Corp., 171 AD3d 1283, 1284 [2019]; Cheney v Cheney, 86 AD3d 833, 838 [2011]). Moreover, a review of the record reveals that, when the agreement was read into the record, the parties agreed that “[t]he amounts set forth on the record for child support are represented from [the parties‘] perspectives to be consistent with the presumptive applications of and obligations under the Child Support Standards Act,” and that it is “the expectation that the amounts paid wеre compliant with the post-judgment maintenance guidelines. . . . So to the extent some higher court some day on an appeal found that the maintenance may have not been perfectly compliant, the parties are comfortable with that.” Finally, when referencing how to recalculate support, the parties agreed “that[,] to the extent any income might exceed the statutory cap[,] there still will be no argument relative to that[,] and child support will be calculated on income both below and above the statutory cap according to the child support percentages.” The record supports Supreme Court‘s determination that the parties waived future litigation as to the calculation of child support and maintenance in their agreement, including any miscalculation of these оbligations (see Lurie v Lurie, 101 AD3d 1429, 1430 [2012], lv dismissed and denied 21 NY3d 956 [2013]).
The husband next contends that Supreme Court incorrectly determined that he was required to immediately apply specifically for his disability pension, as opposed to his retirement pension.3 An agreement “that is incorporated into, but does not merge with, a subsequent judgment of divorce is a legally binding,
Here, the parties agreed “that [the wife] will receive her Majauskas share of the pension benefits pursuant to a shared interest division of the pension. It‘s the expectation and hope that [the parties] will prepare a [QDRO]. . . . Once that [QDRO] is . . . approved by [Supreme Court] . . . it will be entered and served on [the husband‘s employer]. Once [the employer] has approved that [QDRO,] [the husband] will immediately make application for his pension. . . . The parties have agreed that [the wife] will be entitled to [50%] of the marital portion of the pension.” The agreement further provided that “[the wife] will receive any enhancements or supplements to the pension . . . with the оnly exception being the disability supplement that is being provided to [the husband,] which is defined in the summary plan description provided by [the husband‘s employer]. . . . It‘s the expectation . . . that [the husband] will elect a pre-retirement survivor death benefit or survivor option such that should he die befоre he elects to commence and receives his pension benefit, [the wife] will receive her marital share of that pre-retirement death benefit and the marital share. . . . It is the expectation and understanding that [the husband‘s employer] will accept a security of the marital share. [The husband] will also elect and it will be in the [QDRO] that [the wife] will be named as the post-retirement survivor death benefit to the extent of her marital share[, s]uch
Again, a review of the record establishes that, at the time of the agreement, the husband was not old enough to qualify for his regular pension, but was suffering from cancer, and that his death prior to retirement would bar the wife from receiving any pension benefits. As such, Supreme Court properly found that the parties intended the husband to immediately apply for his disability pension benefits (see Siouffi v Siouffi, 177 AD3d at 1208; Matter of Drake v Drake, 114 AD3d 1119, 1121-1122 [2014]).
The husband finally contends that Supreme Court‘s award of counsel fees to the wife was in error. ”
The record reflects that Supreme Court found the wife successful on the merits of her motions, determined that the wife was the less monied spouse — given her limited income and nonliquid assets as compared to the husband‘s guaranteed sources of income and his liquid assets — and determined that the litigation was protracted and prolonged by the husband‘s self-representation such that counsel fees were necessitated in defending and protecting her interests from the husband‘s actions and inactions. Our review reveals that due consideration was given to appropriate factors and, accordingly, we perceive no abuse of discretion in the award or amount of counsel fees (see Matula v Matula, 159 AD3d 1074, 1076 [2018]; Kimberly C. v Christopher C., 155 AD3d 1329, 1336 [2017]). As to the husband‘s request for counsel fees, as he is a self-represented litigant, his application is denied (see Kay v Ehrler, 499 US 432, 438 [1991]; Federal Natl. Mtge. Assn. v Johnson, 177 AD3d 1148, 1149 [2019]).
Garry, P.J., Aarons, Pritzker and Colangelo, JJ., concur.
ORDERED that the orders are affirmed, without costs.