Hinck v. Hinck

• Decision Date: 15 January 2014
• Citation: 979 N.Y.S.2d 116,113 A.D.3d 681,2014 N.Y. Slip Op. 00224
• Parties: In the Matter of Kerry HINCK, respondent, v. Craig HINCK, appellant.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 681

979 N.Y.S.2d 116

2014 N.Y. Slip Op. 00224

In the Matter of Kerry HINCK, respondent,

v.Craig HINCK, appellant.

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

Jan. 15, 2014.

Clifford J. Petroske, P.C., Bohemia, N.Y., for appellant.

Robert J. Del Col, Smithtown, N.Y. (Joseph S. Gulino of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In a proceeding pursuant to Family Court Act article 4, the father appeals from (1) an order of the Family Court, Suffolk County (Parisi, S.M.), dated October 18, 2012, which, after a hearing, directed the entry of a money judgment in favor of the mother and against him in the sum of $7,500 for maintenance arrears, (2) an order of the same court (Parisi, S.M.), dated October 19, 2012, which, after a hearing, directed the entry of a money judgment in favor of the mother and against him in the sum of $45,000 for child support arrears, (3) so much of an order of the same court (Hoffmann, J.), dated December 13, 2012, as denied his objections to the order dated October 19, 2012, directing the entry of a money judgment against him in the sum of $45,000 for child support arrears and granted his objection to the order dated October 18, 2012, directing the entry of a money judgment against him in the sum of $7,500 for maintenance arrears only to the extent of reducing his payment to $7,200 for such arrears, (4) an amended order of the same court (Parisi, S.M.), entered December 26, 2012, which, inter alia, directed him to pay to the mother the sum of $45,000 for child support arrears, and (5) an amended order of the same court (Parisi, S.M.), also entered December 26, 2012, which directed the entry of a money judgment in favor of the mother and against him in the sum of $7,200 in maintenance arrears.

ORDERED that the appeals from the orders dated October 18, 2012, and October 19, 2012, are dismissed, as those orders were superseded by the order dated December 13, 2012, and the amended orders; and it is further,

ORDERED that the order dated December 13, 2012, is affirmed insofar as appealed from; and it is further,

ORDERED that the amended orders are affirmed; and it is further,

ORDERED that one bill of costs is awarded to the mother.

The parties were married and had two children together. Subsequently, they were divorced and entered into a stipulation of settlement, which was incorporated but not merged into the judgment of divorce. Under the terms of the stipulation, the father was obligated to pay the mother child support in the sum of $2,500 per month and maintenance in the sum of $400 per month. Thereafter, the mother commenced a separate plenary action in the Supreme Court seeking to set aside the stipulation. During the months of April 2008 through September 2009, the mother did not cash the checks that the father sent to her in accordance with his support obligations, because her counsel in the plenary action advised that to do so would ratify the terms of the stipulation she was trying to set aside.

Subsequently, the mother's plenary action was dismissed and, according to the mother, when she requested that the father issue a new check to cover the child support and maintenance payments that she had previously declined to cash, he refused. The mother then filed the instant petition in Family Court on March 14, 2012, alleging that the father had violated the terms of the stipulation of settlement and seeking its enforcement. The Family Court granted the mother's petition and issued orders directing the entry of money judgments in favor of her and against the father in the sums of $45,000 for child support arrears and $7,500 for maintenance arrears. The Family Court subsequently denied the father's objections with respect to his obligation to pay $45,000 for child support arrears and granted his objection with respect to his obligation to pay maintenance arrears only to the extent of reducing his payment to $7,200 for such arrears.

The father contends that the mother waived her right to receive child support and maintenance upon her voluntary and intentional decision not to cash the checks that he sent to her during the period from April 2008 through September 2009. He argues that, at the time that he sent the checks, there were sufficient funds to cover them. However, after the mother failed to cash approximately 8 to 12 checks, the father allegedly used the funds in the account.

A valid waiver “ ‘requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver would have been enforceable’ ” (Golfo v. Kycia Assoc., Inc., 45 A.D.3d 531, 532, 845 N.Y.S.2d 122, quoting Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265; see Gresser v. Princi, 128 A.D.2d 752, 753, 513 N.Y.S.2d 462). It may arise by either an express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage ( see Hadden v. Consolidated Edison Co. of N.Y., 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136; Cashin v. Cashin, 79 A.D.3d 963, 913 N.Y.S.2d 321; Cotton v. Cotton, 76 A.D.3d 1041, 908 N.Y.S.2d 133). A waiver “is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” (Peck v. Peck, 232 A.D.2d 540, 540, 649 N.Y.S.2d 22). Rather, there must be proof that there was a voluntary and intentional relinquishment of a known and otherwise enforceable right ( see id.). “ ‘[T]he party claiming a waiver must come forward with evidence of a voluntary and intentional relinquishment of a known and otherwise enforceable right to child support’ ” ( Matter of Tafuro v. Tafuro, 102 A.D.3d 877, 878, 958 N.Y.S.2d 202, quoting Stevens v. Stevens, 82...