Curtis v. Curtis

• Decision Date: 23 July 1987
• Citation: 132 A.D.2d 850,518 N.Y.S.2d 202
• Parties: Ruth V. CURTIS, Respondent, v. George E. CURTIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 202

518 N.Y.S.2d 202

132 A.D.2d 850

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

Supreme Court, Appellate Division Third Department.

July 23, 1987.

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

Scolaro, Shulman, Lawler & Burstein (Barry M. Shulman, of counsel), Syracuse, for respondent.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

HARVEY, Justice.

Appeal (transferred to this court by order of the Appellate Division, Fourth Department) from an order of the Supreme Court (Inglehart, J.), entered August 25, 1986 in Onondaga County, which, inter alia, granted plaintiff's motion for child support arrearages.

Plaintiff and defendant were married in 1964. Two children were born of the marriage before the parties separated in 1973. A separation agreement was incorporated into but not merged with a decree of divorce issued in July 1975. In the separation agreement, defendant agreed to pay $375 per month alimony to plaintiff and $175 per month for support of each of the parties' children. Significant to this appeal is the fact that the child support provision contained an escalation clause which was to be calculated based upon the Consumer Price Index issued by the United States Department of Labor. Also relevant to this appeal are the provisions of the agreement whereby defendant retained responsibility "for all hospital, medical and dental expenses of each child" and his agreement to "provide a college education for each of the two children, in accordance with his financial ability to do so".

In January 1986, plaintiff made an application pursuant to Domestic Relations Law § 244 for certain alleged arrearages due from defendant. Plaintiff sought $4,457 for medical and dental bills which she had allegedly paid from June 1974 until the date of the application. She also sought $4,116.01 to reimburse her for the alleged cost of maintaining health insurance coverage. Although defendant had consistently paid child support in the amount originally called for in the separation agreement, there was no increase in his payments pursuant to the escalation clause. In her application, plaintiff asserted that due to this failure defendant owed $19,492.56 in arrearages. The last item of relief requested by plaintiff was a commitment by defendant to underwrite the college education of the parties' oldest child, Deborah, who was then a high school senior.

Defendant answered the application and asserted numerous defenses. Supreme Court summarily dismissed defendant's defenses and granted plaintiff the full relief requested. The court further ordered defendant to provide verification that he was maintaining life insurance policies called for by the separation agreement and to pay interest on all arrearages. Supreme Court's order was entered August 25, 1986 and a notice of appeal from the order was filed September 5, 1986. A final judgment for $32,760.07 was subsequently entered on November 5, 1986. No appeal was taken from the final judgment.

The first issue which must be addressed is whether this appeal should be dismissed. Defendant appealed only from Supreme Court's order and not from the subsequently entered final judgment. When an appeal is taken from an order and during the pendency of that appeal a final judgment is entered, proper appellate review lies from the judgment (Chase Manhattan Bank, N.A. v. Roberts & Roberts, 63 A.D.2d 566, 404 N.Y.S.2d 608; Jema Props. v. McLeod, 51 A.D.2d 702, 388 N.Y.S.2d 872). However, in the absence of a showing of prejudice, this court can exercise its discretion and, in the interest of justice, consider an appeal from the order as one from the judgment (CPLR 5520[c]; Kozlowski v. City of Amsterdam, 111 A.D.2d 476, 477, 488 N.Y.S.2d 862; see, Frankel v. Manufacturers Hanover Trust Co., 106 A.D.2d 542, 483 N.Y.S.2d 67). Here, there has been no showing of prejudice or that the judgment was different from the order in any material way relevant to this appeal. Hence, we exercise our discretion and consider the appeal as one from the judgment.

Next, it must be determined whether there is merit to defendant's contention that any claims by plaintiff should have been brought in a plenary action, and that Supreme Court erred in allowing plaintiff to use the expedited procedures available under Domestic Relations Law § 244. Defendant's argument in this regard is premised on the fact that the parties separation agreement was incorporated by reference, and not set forth at length, in the judgment of divorce. When a party seeks relief under an agreement which has not been incorporated into a judgment of divorce, either by reference or by setting forth the terms at length, relief under Domestic Relations Law § 244 is not available to enforce the agreement (see, e.g., Sileo v. Sileo, 115 A.D.2d 535, 495 N.Y.S.2d 728). However, in a case such as the one at bar, where the judgment of divorce expressly incorporates by reference the terms of the agreement, a party should not be prevented from using Domestic Relations Law § 244 (see, Scheinkman, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 14, Domestic Relations Law § 244, p. 751; see also, Zipparo v. Zipparo, 70 A.D.2d 616, 416 N.Y.S.2d 321; cf. Baker v. Baker, 66 N.Y.2d 649, 651, 495 N.Y.S.2d 959, 486 N.E.2d 817). Hence, we conclude that the court did not err in allowing plaintiff to proceed under this statute.

Defendant also argues that Supreme Court erred in...