Guerriere v. Guerriere

• Decision Date: 21 December 1992
• Citation: 591 N.Y.S.2d 475,188 A.D.2d 583
• Parties: Marilyn GUERRIERE, Respondent, v. John T. GUERRIERE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 475

591 N.Y.S.2d 475

188 A.D.2d 583

Marilyn GUERRIERE, Respondent, v. John T. GUERRIERE, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 21, 1992.

Labert Lang & Willen, Hauppauge (Eric Dubinsky, of counsel), for appellant.

Sale, Groothuis & Hirsch, Hempstead (Mitchell Hirsch, on the brief), for respondent.

Before SULLIVAN, J.P., and BALLETTA, EIBER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by judgment dated November 17, 1987, the defendant former husband appeals from an order of the Supreme Court, Nassau County (Roberto, J.), entered January 14, 1991, which, inter alia, (1) denied that branch of his motion which was to vacate two prior orders of the same court, dated September 14, 1990, and May 10, 1990, respectively, which granted the plaintiff former wife's motion to hold him in contempt for failure to comply with the parties' judgment of divorce and authorizing his commitment for his contempt, upon his default in opposing the motion, and (2) directed his commitment forthwith.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant's motion is granted to the extent that the contempt orders dated September 14, 1990, and May 10, 1990, are vacated.

Prior to their divorce, the parties entered into a comprehensive agreement distributing their assets. The agreement, executed July 14, 1987, provided, inter alia, that the parties would enter into a lease whereby the defendant would rent office space at the former marital residence so that he could continue his chiropractic practice at that location. The agreement further provided, in relevant part, that the defendant would pay to the plaintiff a "base rent" of $2,000 per month in lieu of maintenance, and that this obligation would continue for a period of five years notwithstanding a termination of the lease "for any reason whatsoever". A judgment of divorce subsequently was entered in the action. The judgment required that the defendant "shall pay to the [wife] a base rent of $2,000.00 per month as rent for his office, which shall be in lieu of all * * * maintenance", and also provided that the agreement executed on July 14, 1987, "shall survive and shall not be merged" in the judgment. Significantly, the judgment did not require the defendant to continue the monthly payments for a five-year period even if the lease were terminated.

It is undisputed that the defendant complied with his "rent" obligation until the latter portion of 1989, when he was required to discontinue his practice at the premises pursuant to local zoning regulations. Consequently, despite the clear and unequivocal terms of the July 14, 1987, agreement, the defendant discontinued the monthly payments. The plaintiff then moved to hold him in contempt of the divorce judgment (see, Domestic Relations Law § 245), which ultimately resulted in the issuance of two orders, dated May 10, 1990, and September 14, 1990, respectively, holding the defendant in contempt for his violation of the obligation to continue "rent" payments. The defendant subsequently moved, inter...