Fitzpatrick v. Fitzpatrick, 2014-02738, Index No. 4060/12.

• Decision Date: 25 May 2016
• Docket Number: 2014-02738, Index No. 4060/12.
• Citation: 2016 N.Y. Slip Op. 04018,139 A.D.3d 1002,33 N.Y.S.3d 338
• Parties: Leslie Miller FITZPATRICK, appellant, v. Brian FITZPATRICK, respondent.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1002

33 N.Y.S.3d 338

2016 N.Y. Slip Op. 04018

Leslie Miller FITZPATRICK, appellant,

v.Brian FITZPATRICK, respondent.

2014-02738, Index No. 4060/12.

Supreme Court, Appellate Division, Second Department, New York.

May 25, 2016.

Leslie Miller Fitzpatrick, Southampton, N.Y., appellant pro se.

Joan Iacono, Bronxville, N.Y. (Barbara Martensson of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

Appeal from an order of the Supreme Court, Westchester County (Francis A. Nicolai, J.), entered January 29, 2014. The order, insofar as appealed from, after a hearing (Duffy, J.), in effect, denied that branch of the plaintiff's motion which was to enforce certain child support provisions of the parties' separation agreement dated April 20, 2012, and, in effect, denied that branch of her separate motion which was for a money judgment against the defendant in the principal sum of $6,200, representing arrears allegedly owed by the defendant referable to summer camp expenses for the parties' unemancipated children.

ORDERED that the order is affirmed insofar as appealed from, with costs.

A separation agreement that is not merged into a judgment of divorce is a contract subject to principles of contract interpretation (see Matter of Meccico v. Meccico, 76 N.Y.2d 822, 823–824, 559 N.Y.S.2d 974, 559 N.E.2d 668 ; Shanon v. Patterson, 38 A.D.3d 519, 830 N.Y.S.2d 905 ).

“[P]arties to an agreement may provide for the payment of liquidated damages upon its breach, and such damages will be upheld if (1) the amount fixed is a reasonable measure of the probable actual loss in the event of breach, and (2) the actual loss suffered is difficult to determine precisely. However, if the liquidated damages do not bear a reasonable proportion to the loss actually sustained by a breach, they will constitute an unenforceable penalty” (Willner v. Willner, 145 A.D.2d 236, 239–240, 538 N.Y.S.2d 599 [citations omitted]; see Zervakis v. Kyreakedes, 257 A.D.2d 619, 620, 684 N.Y.S.2d 291 ).

Here, the parties entered into a separation agreement dated April 20, 2012, which was incorporated but not merged into the judgment of divorce. In relevant part, the agreement provided that, in consideration of the defendant's agreement to pay 100% of the costs associated with maintaining the marital residence (in which the plaintiff and the parties' four children continued to reside), the defendant would pay $1,500 per month in child support until the date of the sale of the marital residence, and $5,076.29 per month thereafter....