Fishkin v. Fishkin

• Decision Date: 15 August 1994
• Citation: 615 N.Y.S.2d 899,201 A.D.2d 202
• Parties: Susan FISHKIN, Respondent, v. Stanley FISHKIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 899

615 N.Y.S.2d 899

201 A.D.2d 202

Susan FISHKIN, Respondent, v. Stanley FISHKIN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Aug. 15, 1994.

Brandes Weidman & Spatz, P.C., New York City (Joel R. Brandes, Carole L. Weidman, and Kenneth S. Sternberg, of counsel), for appellant.

Donald Frank, New York City (Steven Goldfeder, of counsel), for respondent.

Before SULLIVAN, J.P., and BALLETTA, JOY and FRIEDMANN, JJ.

SULLIVAN, Justice Presiding.

These appeals arise out of certain lengthy and closely contested proceedings concerning the financial aspects of the parties' divorce. In August 1978, the parties entered into a separation agreement providing, inter alia, that custody of the parties' children would be with the wife. The husband was obligated to pay child support in a fixed amount, with certain credits to him for the payment of room and board expenses of the children in the event that they attended college and did not live at home. Moreover, the husband was required to pay a fixed amount for the support of the wife, and was also obligated to pay additional spousal support pursuant to a complex escalation clause formula which was based on the relative earnings of the parties. The comprehensive separation agreement further provided as follows:

"This Agreement shall be offered into evidence in any [divorce] suit and shall be incorporated by reference in the decree that may be granted therein. The decree shall be in conformity with the provisions hereof and shall in no respect impair or modify this Agreement. This Agreement notwithstanding its incorporation by reference shall not be merged in the decree but shall survive the same and shall be binding and conclusive on the parties."

By judgment of the Supreme Court, Westchester County, dated December 20, 1979, the parties were divorced on the ground that they had lived separate and apart pursuant to the separation agreement for a period of one year or more following the execution of the agreement (see, Domestic Relations Law § 170[6].

By orders to show cause dated June 14, 1985 and September 10, 1985, respectively, the former wife moved, inter alia, for an upward modification of child support and for maintenance arrears and counsel fees. The husband cross-moved, inter alia, for an order directing a psychiatric examination of the former wife and the parties' children. A lengthy evidentiary hearing on the applications ended in a mistrial; hence, a second hearing was held. The court determined the motion and cross motion in an order entered on October 23, 1991, which, inter alia, increased the former husband's child support obligation and awarded certain amounts to the former wife for maintenance arrears and counsel fees. On December 9, 1991, the former wife moved for a money judgment for previously awarded maintenance arrears, child support arrears, and a money judgment for the previously awarded counsel fees. On February 3, 1992, she moved for new awards of counsel fees in connection with her defense of the former husband's appeal from the order entered October 23, 1991. These applications resulted in an order entered April 7, 1992, which, among other things, directed the entry of a judgment in favor of the former wife for maintenance and child support arrears of $110,732.76, counsel fees in the amount of $35,000, additional awards of counsel fees of $2,500 in connection with the prosecution of her application for a money judgment, and $15,000 in attorney's fees in connection with her defense of the former husband's appeal from the October 23, 1991, order. The award of counsel fees in connection with the appeal was made upon default after the former husband untimely opposed the application therefor and the court refused to consider his papers. Finally, a judgment in favor of the former wife and against the former husband in the principal amount of $110,732.76 was entered on or about April 17, 1992. The former husband appeals, as limited by his brief, from certain portions of the orders entered October 23, 1991, and April 7, 1992, as well as from the judgment dated April 17, 1992.

Initially, we note that various portions of the former husband's appeals must be dismissed on procedural grounds. The appeal from that portion of the order entered October 23, 1991, which awarded the former wife $9,478 for maintenance arrears, and the appeal from that portion of the order entered April 7, 1992, which directed the entry of a judgment in favor of the former wife in the amount of $110,732.76, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment thereon (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeals from those portions of the orders are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].

The appeal from that portion of the order entered October 23, 1991, which awarded counsel fees in the amount of $35,000 to the former wife is dismissed, as that portion of the order was superseded by the order entered April 7, 1992.

The appeal from that portion of the order entered April 7, 1992, which, upon the former husband's default, awarded counsel fees in the amount of $15,000 to the former wife, must also be dismissed, inasmuch as no appeal lies from a portion of an order made upon default (see, CPLR 5511; see also, Matter of Mitchell v. Morris, 177 A.D.2d 579, 576 N.Y.S.2d 295; Tongue v. Tongue, 97 A.D.2d 638, 468 N.Y.S.2d 922, affd 61 N.Y.2d 809, 473 N.Y.S.2d 950, 462 N.E.2d 127; Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99). While the former husband subsequently moved to vacate the portion of the order entered upon his default, he did not appeal from the denial of that motion. Accordingly, this portion of the order entered April 7, 1992, is beyond our review.

Turning to the merits, we find unpersuasive the former husband's contention, raised for the first time on these appeals, that the Supreme Court lacked the authority to entertain the former wife's applications to modify and enforce his support obligations. While the specific support provisions contained in the parties' separation agreement were not set out at length in the judgment of divorce (see generally, Baker v. Baker, 66 N.Y.2d 649, 495 N.Y.S.2d 959, 486 N.E.2d 817), it is clear that Domestic Relations Law § 244, as amended by Laws of 1988, chapter 327, section 1, permits the enforcement of such provisions in a separation agreement where that agreement is incorporated by reference into the judgment of divorce (see, Curtis v. Curtis, 151 A.D.2d 945, 543 N.Y.S.2d 220). The former husband's claim that there was no such incorporation by reference in this case is belied by the record. While it is preferable to include the specific words "incorporated by reference" in a divorce judgment which is based on an agreement between the parties, the mere absence of those words is not determinative. Here, there is no question that the parties intended that the terms of the separation agreement would be incorporated by reference into the subsequent divorce judgment and would be enforceable by way of a motion pursuant to Domestic Relations Law § 244. Indeed, "[t]he intention of the parties that the provisions of the separation agreement be incorporated but not merged into the judgment of divorce is clear from the language of the agreement itself" (Merrick v. Merrick, 181 A.D.2d 503, 581 N.Y.S.2d 587). Hence, were incorporation by reference lacking in this case, the former wife clearly would be entitled to the resettlement of the...