Curtis v. Curtis

• Decision Date: 29 June 1989
• Citation: 543 N.Y.S.2d 220,151 A.D.2d 945
• Parties: Ruth V. CURTIS, Respondent-Appellant, v. George E. CURTIS, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 220

543 N.Y.S.2d 220

151 A.D.2d 945

Ruth V. CURTIS, Respondent-Appellant, v. George E. CURTIS, Appellant-Respondent.

Supreme Court, Appellate Division,

Third Department.

June 29, 1989.

Alderman & Alderman (Edward B. Alderman, of counsel), Syracuse, for appellant-respondent.

Scolaro, Schulman, Cohen, Lawler & Burstein, P.C. (Barry M. Schulman, of counsel), Syracuse, for respondent-appellant.

Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.

WEISS, Justice.

Cross appeals (transferred to this court by order of the Appellate Division, Fourth Department) (1) from a second amended order and judgment of the Supreme Court (Tait, Jr., J.), entered November 22, 1988 in Onondaga County, which, inter alia, granted plaintiff a judgment for child support arrearages, and (2) from an order of said court, entered April 20, 1988 in Onondaga County, which denied defendant's motion to compel financial disclosure.

The events underlying this appeal are detailed in our previous decision remitting the case to Supreme Court for a hearing on various issues (132 A.D.2d 850, 518 N.Y.S.2d 202). Upon remittal, Supreme Court first denied defendant's request to have plaintiff disclose her finances from 1974 forward and specifically limited the scope of the remittal hearing to the specific issues set forth in our prior decision. Following a hearing, the court rejected plaintiff's claim for medical expense reimbursement, awarded plaintiff child support arrearages amounting to $21,839.72, plus interest of $6,599.30, and directed defendant to pay $11,061.50 for the uncovered college expenses of the parties' oldest child, Deborah, for the 1986-1987 and 1987-1988 academic years and to assume the uncovered costs of her remaining two years of college. These cross appeals ensued.

We affirm. Initially, we find that plaintiff's claim for reimbursement of medical expenses was properly rejected. The record confirms that defendant complied with the terms of the separation agreement by continually maintaining health insurance coverage for the children. Plaintiff's failure to take advantage of this coverage vitiates her claim.

Next, we find Supreme Court's child support arrearage award to be entirely appropriate. Detailed evidence was presented to establish the governing consumer price index for the period in issue and we discern no error in the court's actual arrearage calculation. The court also properly included the arrearage accruing during the pendency of the proceeding, as requested prior to the remittal hearing (see, Domestic Relations Law § 244-a). We further agree that interest on the award was appropriate inasmuch as defendant deliberately discontinued the cost-of-living increments (see, Domestic Relations Law § 244; Scheinkman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law § 244, at 753). We are not persuaded by defendant's suggestion that interest was unwarranted because his support obligation flowed from the terms of a separation agreement, not a "lawful court order" (see, Baker v. Baker, 66 N.Y.2d 649, 495 N.Y.S.2d 959, 486 N.E.2d 817). The enforcement mechanism set forth in Domestic Relations Law § 244 now extends to defaults in payments due, as here, under a separation agreement incorporated by reference into a judgment of divorce (see, L. 1988, ch. 327, eff. July 25, 1988; Scheinkman, Supp Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law § 244 [1989 Pocket Part], at 123-124). Notably, this amendment applies retrospectively to judgments entered before the effective date (L. 1988, ch. 327, § 3).

Defendant's principal challenge to the arrearage award is that plaintiff's acceptance of support payments without demanding the annual cost-of-living increments from June 1979 until October 1985 constitutes an implicit waiver of her claim (see, Robinson v. Robinson, 81 A.D.2d 1028, 440 N.Y.S.2d 127). We recognize that a waiver may occur where the custodial parent gratuitously supports a child without expectation of reimbursement (see, Maule v. Kaufman, 33 N.Y.2d 58, 60-61, 349 N.Y.S.2d 368, 304 N.E.2d 234). The six-year demand gap highlighted by defendant, however, does not compel a finding of waiver (see, id., at 62, 349 N.Y.S.2d 368, 304 N.E.2d 234; see also, Messina v. Messina, 143 A.D.2d 735, 737, 533 N.Y.S.2d 298; Thompson v. Lindblad, 125 A.D.2d 460, 461, 509 N.Y.S.2d 389; Lannon v. Lannon, 124 A.D.2d 1051, 1052, 508 N.Y.S.2d 743; Friedman v. Exel, 116 A.D.2d 433, 435-436, 501 N.Y.S.2d 831). There is little dispute that plaintiff demanded the annual increments from 1975 through 1979 and that defendant paid these increments up to 1977. In May 1979, however, defendant, through counsel, represented that...