Cohen v. Seletsky

• Decision Date: 21 November 1988
• Citation: 534 N.Y.S.2d 688,142 A.D.2d 111
• Parties: In the Matter of Rhodi S. COHEN, Appellant, v. Michael SELETSKY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 688

534 N.Y.S.2d 688

142 A.D.2d 111

In the Matter of Rhodi S. COHEN, Appellant, v. Michael SELETSKY, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 21, 1988.

Seligman & Seligman, Garden City (Doris Seligman, of counsel), for appellant.

Field and Field, Great Neck (Marcia K. Field, of counsel), for respondent.

Before BROWN, J.P., and RUBIN, EIBER and SULLIVAN, JJ.

RUBIN, Justice.

On this appeal we are asked to decide whether the Family Court may apply the standard of a subsequent change in circumstances when it reviews a request for modification of maintenance obligations under a judgment of the Supreme Court which incorporates but does not merge the terms of a stipulation of settlement entered into by the parties after the effective date of the equitable distribution law, July 19, 1980. We hold that the Family Court may not apply this lesser standard, but is constrained to apply the standard that the Supreme Court is mandated to follow upon review of such an application, namely, extreme hardship.

The appellant and the respondent were divorced pursuant to a judgment of the Supreme Court, Nassau County, dated March 27, 1984. The divorce judgment incorporated the provisions of an oral stipulation of settlement entered into by the parties in open court on January 11, and 12, 1984, regarding, inter alia, custody of the parties' three children, maintenance, child support and distribution of the marital assets. Custody of their oldest son was awarded to the respondent and custody of the daughter and youngest son was awarded to the appellant. The divorce judgment, in accordance with the stipulation of settlement, expressly directed the respondent to pay the appellant maintenance in the sum of $225 per week for five consecutive years and to pay child support to the appellant for the daughter and the youngest son in the sum of $75 per week per child until the respective child attained the age of 21 or was otherwise emancipated. Pursuant to the last decretal paragraph of the divorce judgment, the stipulation of settlement was to survive and not be merged in the judgment and the Supreme Court and Family Court were to have concurrent jurisdiction over the matter for the purpose of specifically enforcing its provisions.

In February 1985, the respondent husband commenced this proceeding in the Family Court for a downward modification of the maintenance provisions of the divorce judgment based upon a change of circumstances. The respondent alleged that his income had decreased due to the loss of his largest account and his expenses had increased due to his remarriage. Additionally, he claimed that the appellant's expenses had decreased, because her boyfriend had moved into her residence, was using the house for his business and was sharing her expenses. Additionally, the respondent petitioned for a modification of the custody provision of the divorce decree. He sought to change legal custody of the oldest son from sole custody in himself to joint custody, predicated upon the fact that the boy was currently residing with the appellant and the respondent was allegedly paying $75 per week for his support.

In March 1985, the appellant cross-petitioned for enforcement of the support and maintenance provisions of the divorce judgment of the Supreme Court. She sought arrears in the sum of $1,800 for maintenance and child support that the respondent had allegedly failed to pay since February 1985.

Pending a disposition of the respective petitions, the Family Court, by order entered March 29, 1985, granted the appellant's application for interim relief to the extent of temporarily ordering the respondent to pay the aggregate sum of $225 per week as child support ($75 per week per child) to the Support Collection Unit effective April 1, 1985.

By order dated August 27, 1985, the Family Court awarded legal and physical custody of the eldest son to the appellant. By a separate order of the same date, the parties' remaining petitions, including a subsequent application by the respondent to reduce the temporary support order of the Family Court by the sum of $175 due to their daughter's change of residence in June 1985 from the appellant's house to the paternal grandparents' home, were referred to a Hearing Examiner to hear and report.

A hearing was commenced before a Family Court Hearing Examiner on February 18, 1986, at which time the respondent testified. The hearing was continued on March 4, 1986. After testimony was given by the parties' oldest son and the appellant's boyfriend, Mark Hart, the hearing was adjourned until March 10. The respondent had subpoenaed both of these witnesses to testify at the hearing regarding his petition for a downward modification of the maintenance provisions of the divorce decree. Since the respondent's direct examination of Hart could not be concluded until the latter complied with a subpoena duces tecum, which requested the production, inter alia, of documents pertaining to his sale of antiques stored at the appellant's residence, an adjournment was necessary to await the disposition of the respondent's pending motion to adjudge Hart in contempt of court for his failure to comply with that subpoena. Additionally, Hart's counsel indicated an intention to reargue at the contempt hearing a previously denied oral application to quash the subpoena as a "fishing expedition" into Hart's finances, which was not relevant to the issue of what contributions, if any, Hart made to the appellant. The respondent and Hart were scheduled to appear on March 10 before Family Court Judge DeMaro in the contempt proceeding.

On March 10, Judge DeMaro directed Hart to deliver subpoenaed documents to the respondent's counsel by March 14 and then adjourned the contempt proceeding to April 1, 1985. The hearing before Hearing Examiner Casher on the respondent's petition for modification and the appellant's cross petition for enforcement of the maintenance and support provisions of the divorce decree was also adjourned to 11:30 A.M. on April 1. This adjournment was attributable in part to the appellant's counsel's purported inability to attend the March 10 hearing due to illness. It is conceded that Hart delivered some of the subpoenaed documents to the respondent's counsel on March 14.

On April 1, at 11:45 A.M., Hearing Examiner Casher reconvened the hearing on the parties' respective petitions. When Hart, the appellant and the appellant's attorney failed to timely appear at the call of the matter, the respondent made an oral motion (1) to prevail on his respective petitions for modification of the judgment of divorce by deleting the maintenance provision and for modification of the Family Court's temporary support order of March 29, 1985, by reducing the child support by the sum of $75 per week and (2) to dismiss the appellant's petition for enforcement and to vacate arrears. The motion, predicated upon the appellant's default, was granted with a direction to submit a written order on notice to the appellant. By written order, entered April 28, 1986, Hearing Examiner Cashier dismissed the appellant's petition for enforcement for failure to prosecute and granted the respondent's petition for modification of the divorce judgment to the extent of vacating the maintenance provision upon finding a change of circumstances. Specifically, the respondent's expenses had increased due to his remarriage and Mark Hart was sharing the appellant's expenses as he was living with the appellant and using the former marital premises for business purposes. The order also modified the temporary order of the Family Court based upon a change of circumstances due to the daughter's residence with the respondent's parents, and ordered the respondent to pay a total of $150 per week for the support of his two sons through the Support Collection Unit with the appellant as the beneficiary.

Prior to the entry of the aforesaid order, the appellant moved to restore the matter to the calendar and to vacate the order entered April 28, 1986. In support of the motion, the appellant's counsel affirmed that she had appeared at the hearing of April 1, 1986, albeit 10 minutes late, and discovered that the Hearing Examiner had already disposed of the petitions. A notice of appearance filed with the clerk of the Family Court corroborated counsel's affirmation. Counsel further explained that she had been suffering from a back injury and unsuccessfully attempted to contact the respondent's counsel at the latter's office the morning of April 1 to advise her that she might be a little late in arriving at the courthouse. She was anticipating an adjournment of the hearing because she believed that Mark Hart and the respondent's counsel had previously agreed to an adjournment. Counsel proffered evidence of the numerous dates since June 1985 when she appeared in the Family Court with regard to the matter and contended that there had been no willful default. In further support of the motion was an affidavit by Mark Hart, who alleged that he had advised the respondent's counsel on March 24 that he would be unable to attend the hearing scheduled for April 1 because his employer required his attendance at a 4-day national sales conference in Sandusky, Ohio. Hart maintained that the respondent's counsel had consented to adjourn the hearing to April 8. It is undisputed that prior to April 1, Hart had similarly advised the Family Court of his inability to attend the scheduled hearing by delivering a letter from his employer to the Administration Office in accordance with instructions from court personnel. In an affirmation in opposition to the motion, the respondent's attorney noted that she had advised the Hearing Examiner on April 1 of Hart's telephone call that he would be out of town on business on the scheduled hearing date, but denied consenting to an adjournment. By order dated May 12, 1986, Hearing Examiner Cashier denied the...