Carr–Harris v. Carr–Harris

• Decision Date: 08 August 2012
• Citation: 949 N.Y.S.2d 707,98 A.D.3d 548,2012 N.Y. Slip Op. 05902
• Parties: Natalie CARR–HARRIS, appellant, v. Philip CARR–HARRIS, respondent.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 548
949 N.Y.S.2d 707
2012 N.Y. Slip Op. 05902

Natalie CARR–HARRIS, appellant,
v.
Philip CARR–HARRIS, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 8, 2012.

[949 N.Y.S.2d 709]

Carl F. Lodes, Carmel, N.Y., for appellant.

Gordon A. Burrows, White Plains, N.Y., for respondent.

REINALDO E. RIVERA, J.P. THOMAS A. DICKERSON L. PRISCILLA HALL ROBERT J. MILLER, JJ.

[98 A.D.3d 549]In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Westchester County (Tolbert, J.), entered July 19, 2011, which, upon a decision of the same court dated December 22, 2009, made after a nonjury trial, inter alia, failed to award her spousal maintenance and counsel fees.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff and the defendant were married for more than 30 years, during which time the defendant worked as a church minister. The parties have four children, only one of whom was a minor at the time the trial in this divorce action was commenced. In a pendente lite order, the defendant was directed, inter alia, to pay child support, to satisfy child support arrears in the amount of $14,400, to maintain health insurance for the plaintiff and the parties' minor child, and to reimburse the plaintiff for certain educational costs for their two daughters.

At trial, the plaintiff testified that the defendant was the main breadwinner of the family and that, although she had a Master's degree and had worked towards two separate doctorate degrees, she worked for only three years during the course of the marriage. She also testified that the parties had borrowed more than $75,000 from her aunt, Gloria Ewsuk, although the parties did not execute a promissory note or other documentation confirming the loan. The parties also borrowed $40,000 from the plaintiff's mother, Kathleen Petrochko, and received $50,000 from the defendant's mother, Zoya Carr–Harris (hereinafter Zoya). The plaintiff claimed that, although the parties executed a promissory note for the sums received from Zoya, the principal amount was a gift and the parties were obligated only to repay $20,000 in interest, of which $17,000 had been repaid.

The plaintiff filed several motions for contempt against the defendant, alleging that he had violated a pendente lite order by failing to pay, among other things, the health insurance premiums for her and the minor child. In addition, the plaintiff testified that the defendant failed to make child support payments, failed to reimburse her for certain college expenses for the two daughters, and failed to reimburse the plaintiff for, inter alia, out-of-pocket health care expenses and expenses she incurred in readying the marital home for sale. The plaintiff also sought an award of spousal support and counsel fees. Toward the end of the trial, the plaintiff admitted that she signed [98 A.D.3d 550]confessions of judgment in favor of various family members and friends, claiming that these individuals had loaned her money during the marriage and during the divorce proceedings and that she wished to ensure that the lenders would be repaid.

The defendant claimed that the sums received from Ewsuk were gifts and that he never had any direct discussions with Ewsuk regarding the alleged loans. In addition, he acknowledged that the parties

[949 N.Y.S.2d 710]

borrowed $40,000 from Petrochko, which they agreed to pay back with interest. He also claimed that the entire sum received from Zoya was a loan, and the parties were obligated to repay the principal and accumulated interest. He acknowledged that he was obligated to pay the child support arrears.

After trial, in December 2009, the Supreme Court found that the sums received from Ewsuk were gifts, as there was no documentary evidence to support the claim that the sums were intended to be loans. Moreover, the Supreme Court determined that the parties owed $70,000 to Petrochko, $50,000 to Zoya, and $21,000 to the three nonminor children, reflecting the sums the parties had borrowed from their children in order to make a down payment for the purchase of the marital home. The Supreme Court determined that, although the defendant failed to comply with the pendente lite order, his failure to do so was not willful. Further, the Supreme Court found that the plaintiff was not...