Kaplan v. Kaplan

• Decision Date: 01 July 2015
• Docket Number: 2014-00906
• Citation: 2015 N.Y. Slip Op. 05645,13 N.Y.S.3d 184,130 A.D.3d 576
• Parties: Andrew KAPLAN, respondent-appellant, v. Meryl KAPLAN, appellant-respondent.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 576

13 N.Y.S.3d 184

2015 N.Y. Slip Op. 05645

Andrew KAPLAN, respondent-appellant

v.Meryl KAPLAN, appellant-respondent.

2014-00906

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

July 1, 2015.

Eric Ole Thorsen, New City, N.Y., for appellant-respondent.

The Penichet Firm, P.C., White Plains, N.Y. (Luis Andrew Penichet of counsel), for respondent-appellant.

REINALDO E. RIVERA, J.P., PETER B. SKELOS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.

Opinion

Appeal and cross appeal from stated portions of an order of the Supreme Court, Rockland County (Margaret Garvey, J.), dated January 2, 2014. The order, after a hearing, inter alia, granted those branches of the plaintiff's motion which were to modify the maintenance and child support provisions of the parties' separation agreement, directed that the plaintiff recoup the overpayment of his maintenance obligation made since the filing of his motion as a credit against his future maintenance obligation, granted the defendant's motion for an award of child support for the period commencing after the parties' youngest child began to reside with her, directed that the cost of the children's college tuition, room and board, and related costs, and their unreimbursed medical expenses, be divided between the parties according to their respective pro rata percentage of total parental income, and directed that the parties' youngest child could become emancipated in any manner recognized under New York law.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof granting that branch of the plaintiff's motion which was for a downward modification of his child support obligation under the parties' separation agreement, and substituting therefor a provision denying that branch of the plaintiff's motion; and (2) by deleting the provisions thereof directing that the plaintiff recoup the overpayment of his maintenance obligation made since the filing of his motion as a credit against his future maintenance obligation, granting the defendant's motion for an award of child support for the period commencing after the parties' youngest child began to reside with her, directing that the cost of the children's college tuition, room and board, and related costs, and their unreimbursed medical expenses, be divided between the parties according to their respective pro rata percentage of total parental income, and directing that the parties' youngest child could become emancipated in any manner recognized under New York law; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for a recalculation of the plaintiff's child support obligation in accordance herewith.

The parties were married on March 17, 1990, and have two children. By order dated August 8, 2008, the Family Court awarded the plaintiff sole legal and physical custody of the children. In a judgment of divorce dated March 30, 2010, which incorporated but did not merge a separation agreement dated January 13, 2010, the defendant's child support obligation was set at the sum of $25 a month and the plaintiff was required to pay the defendant maintenance in the sum of $16,666 per month for a period of 10 years. In 2009, the plaintiff's income was approximately $1.8 million and the defendant was unemployed. In July 2012, more than two years after losing his job, the plaintiff moved to modify the maintenance and child support provisions of the parties' separation agreement. In November 2012, after the parties' youngest child began living with her, the defendant moved for an award of child support from the plaintiff for that child.

The Supreme Court properly granted that branch of the plaintiff's motion which was for a downward modification of his maintenance obligation. The plaintiff demonstrated that his loss of employment was unavoidable, that he made a good-faith effort to obtain employment commensurate with his qualifications and experience, and that continued enforcement of the maintenance obligation as set forth in the parties' separation agreement would create an “extreme hardship” (cf. Lewis v. Lewis, 43 A.D.3d 462, 463–464, 841 N.Y.S.2d 347 ; see Beard v. Beard, 300 A.D.2d 268, 269, 751 N.Y.S.2d 304 ; Pintus v. Pintus, 104 A.D.2d 866, 868–869, 480 N.Y.S.2d 501 ). The Supreme Court also providently exercised its discretion in imputing $450,000 in income to the plaintiff based upon, inter alia, his educational background and employment history (see Matter of Julianska v. Majewski, 78 A.D.3d 1182, 1183, 911 N.Y.S.2d 655 ; Friedman v. Friedman, 309 A.D.2d 830, 831, 766 N.Y.S.2d 82 ), and reducing his maintenance obligation to the defendant from $16,666 per month to $6,375 per month, taking into consideration, inter alia, the relevant factors enumerated in Domestic Relations Law § 236(B)(6) (a) (see Baron v. Baron, 71 A.D.3d 807, 809, 897 N.Y.S.2d 456 ; Otto v. Otto, 207 A.D.2d 530, 532, 616 N.Y.S.2d 82 ).

However, the Supreme Court erred in directing that the plaintiff recoup the overpayment of his maintenance obligation made since the filing of his motion as a credit against his future maintenance obligation. Generally, as a matter of public policy, a payor spouse is not entitled to restitution or recoupment of maintenance payments (see Fox v. Fox, 306 A.D.2d 583, 759 N.Y.S.2d 702 ; Vigliotti v. Vigliotti, 260 A.D.2d 470, 471, ...