Du Jack v. Du Jack

• Decision Date: 16 October 1997
• Citation: 663 N.Y.S.2d 349,243 A.D.2d 908
• Parties: , 1997 N.Y. Slip Op. 8570 Debra T. DU JACK, Respondent, v. Joseph M. DU JACK, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 349

663 N.Y.S.2d 349

243 A.D.2d 908, 1997 N.Y. Slip Op. 8570

Debra T. DU JACK, Respondent, v. Joseph M. DU JACK, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 16, 1997.

Harvey and Harvey, Harvey & Mumford (Jonathan P. Harvey, of counsel), Albany, for appellant.

Friedman & Manning (Stephen L. Molinsek, of counsel), Delmar, for respondent.

Before CREW, J.P., and WHITE, PETERS and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from an order of the Supreme Court (Teresi, J.), entered June 27, 1996 in Albany County, which, inter alia, granted plaintiff's motion to direct defendant to pay the balance due under the parties' judgment of divorce.

The parties were divorced in 1995 and have joint custody of their two children. Defendant had previously appealed from the judgment of divorce, and this court reduced plaintiff's equitable distribution award as it related to an interest in a family-run business from $833,000 to $250,000 (221 A.D.2d 712, 632 N.Y.S.2d 895, lv. denied 88 N.Y.2d 802, 645 N.Y.S.2d 445, 668 N.E.2d 416). During the pendency of that appeal, defendant sought a stay of the judgment and ardently opposed the requirement that he post an undertaking. Specifically, defense counsel argued that absent a discretionary stay without an undertaking, defendant would be prejudiced and inevitably lose between $188,000 and $468,000. This court did not require defendant to post an undertaking; rather, it granted the stay "on the conditions that [defendant] continues to pay spousal support in the amount of $1,600 per month and that [defendant] shall maintain a minimum equity in his brokerage account of $833,000".

After our decision on the appeal, defendant paid plaintiff the $250,000 but deducted $11,200, representing seven spousal support payments made during the pendency of the appeal. Reversing his earlier position that an undertaking was inappropriate, defendant now argues that these spousal payments were "in the nature of an undertaking" entitling him to reimbursement from plaintiff. Supreme Court granted plaintiff's motion for an order directing defendant to pay her the withheld funds, prompting this appeal.

An undertaking is "a sum fixed by the court" (CPLR 5519[a][4] ) which the parties are required to "file[ ] with the clerk of the court " (CPLR 2505 [emphasis supplied] ). Here, defendant clearly was not required to file an undertaking and his attempt to argue otherwise in order to recoup the $11,200--a modest sum in the scheme of these parties' financial history--is not well taken. Moreover, even assuming that defendant had been required to file an undertaking by this court, he would not have been relieved of the obligation to continue making interim payments to plaintiff in the form of temporary maintenance (see, McKiernan v. McKiernan, 223 A.D.2d 917, 918, 636 N.Y.S.2d 477, 478).

As a general matter, there is no statutory mechanism granting a credit for overpayments of spousal support which are subsequently reduced or reversed on appeal (see, Foxx v. Foxx, 114 A.D.2d 605, 607, 494 N.Y.S.2d 446; Rodgers v. Rodgers, 98 A.D.2d 386, 470 N.Y.S.2d 401, appeal dismissed 62 N.Y.2d 646; Rosenberg v. Rosenberg, 42 A.D.2d 590, 345 N.Y.S.2d 73; Grossman v. Ostrow, 33 A.D.2d 1006, 308 N.Y.S.2d 280; see also, 2 Foster, Freed and Brandes, Law and the Family § 1.8, at 18 [2d ed.] ). Although the judgment of divorce did not award plaintiff spousal support, it is noteworthy that defendant erroneously believed that it did and argued that same was error in the prior appeal. Moreover, there is no language in this court's decision and order on the stay motion granting defendant a credit for any spousal support paid during the appeal (compare, Gettys v. Ryan, 267 A.D. 1029, 48 N.Y.S.2d 128). Under these circumstances, we find that Supreme Court committed no error when it refused to credit defendant with $11,200.

We now turn to an additional unresolved issue. During the marriage, the parties purchased a house in the Town of North Greenbush, Rensselaer County, for $128,900 and a second house in the Village of Menands, Albany County, for $415,000. Pursuant to the judgment of divorce, defendant was directed to convey "all of his right, title and interest" in these properties to plaintiff. The judgment of divorce and proposed findings of facts and conclusions of law adopted by the Hearing Officer are silent on the issue of who, as between the parties, is...