Haberman v. Haberman

• Decision Date: 26 June 1995
• Citation: 629 N.Y.S.2d 65,216 A.D.2d 525
• Parties: Sondra HABERMAN, Respondent, v. Michael HABERMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 65

629 N.Y.S.2d 65

216 A.D.2d 525

Sondra HABERMAN, Respondent, v. Michael HABERMAN, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 26, 1995.

Meyer, Suozzi, English & Klein, P.C., Mineola (Michael N. Klar, of counsel), for appellant.

Koopersmith, Feigenbaum & Potruch, Lake Success (Kenneth Koopersmith and Susan Potter Ellis, of counsel), for respondent.

Before MANGANO, P.J., and JOY, HART and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to Domestic Relations Law § 244, the defendant appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Levitt, J.), entered March 14, 1994, as (1) granted those branches of the plaintiff's motion which were for leave to enter a judgment for arrears in maintenance and child support, (2) denied the branch of his cross motion which was to direct the plaintiff to pay him rent for her unauthorized use of the marital residence, and (3) is in favor of the plaintiff and against him in the principal sum of $42,490 ($36,490 as arrears in child support and $6,000 as arrears in maintenance).

ORDERED that the order and judgment is modified by deleting therefrom the first and fourth decretal paragraphs; as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the appellant, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of whether the plaintiff wife's claim for arrears in maintenance and child support is barred on the ground of laches.

Under the terms of a judgment of divorce entered April 25, 1977, the plaintiff was awarded exclusive occupancy of the marital residence until her death, remarriage, or until January 28, 1989, the date the parties' youngest child reached the age of 18, whichever first occurred.

The defendant contends that despite the fact that he asked the plaintiff to list the marital residence for sale in September 1988, the plaintiff refused to do so, insisting instead that the house not be sold until after the youngest child graduated from college.

At the time the youngest child began college in the 1989-1990 school year, the parties' other child was to begin his senior year of college. In anticipation that the children's college expenses and tuition would double during the 1989-1990 school year, the defendant advised the plaintiff that he could not afford to pay the college tuition and expenses for both children while continuing to pay maintenance and child support unless the marital residence was sold and he received his share of the net proceeds from the sale (the judgment of divorce was silent on the issue of the payment of college tuition). Finally, in September 1989, just prior to the youngest child entering his freshman year in college, the plaintiff allegedly agreed to sell the marital residence.

In anticipation that the house would be sold, the defendant agreed to pay for the final year of the oldest child's college education and to pay for the youngest child's college tuition and expenses. However, in November 1989, just two months after the youngest child started college, the defendant contends that the plaintiff "reneged on her promise to sell the former marital residence, advising the [defendant] that she preferred to live in the house until the youngest child graduated from college". As a result, and with the alleged acquiescence of the plaintiff, the defendant terminated maintenance and child support payments in November 1989 and paid the college tuition and expenses for their oldest child's final year and for all four years for their youngest child.

In 1993, only two weeks after the youngest child graduated from college, the plaintiff moved for leave to enter a judgment for arrears in maintenance and child support contending that the defendant had ceased making these payments in or about November 1989. The husband cross-moved, inter alia, for partition of the marital residence, and opposed the plaintiff's motion asserting that she was guilty of laches in commencing her action for child support and maintenance because she had agreed to waive her right to receive these payments in return for her continued use of the marital residence until the youngest child graduated from college and for the defendant's full payment of the children's college tuition and expenses. As a result, the defendant changed his position to his financial detriment by paying for the children's college tuition and expenses,...