Kromer v. Kromer
| Decision Date | 04 November 1991 |
| Citation | 575 N.Y.S.2d 904,177 A.D.2d 472 |
| Parties | Christine KROMER, Respondent, v. Michael KROMER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph F. DeFelice, Ozone Park, for appellant.
Robert M. Simels, P.C., New York City (Peggy Raptis, of counsel), for respondent.
Before KUNZEMAN, J.P., and BALLETTA, MILLER and O'BRIEN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of a separation agreement, the defendant appeals, as limited by his brief, from so much of a resettled judgment of the Supreme Court, Queens County (Zelman, J.), entered June 14, 1989, as, after a nonjury trial, awarded the plaintiff the sum of $887.43 to cover one-half of certain medical expenses of their minor children and dismissed the defendant's counterclaim to recover alleged erroneous overpayments of child support on the ground that it "was not brought timely".
ORDERED that the resettled judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith, and entry of an appropriate amended judgment.
It is well settled that a separation agreement is a contract subject to principles of contract interpretation (see, Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258; Matter of Meccico v. Meccico, 76 N.Y.2d 822, 824, 559 N.Y.S.2d 974, 559 N.E.2d 668), and that where the intention of the parties is clearly and unambiguously set forth, their intent "must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (see, Rainbow v. Swisher, supra; Matter of Meccico v. Meccico, supra; Slatt v. Slatt, 64 N.Y.2d 966, 967, 488 N.Y.S.2d 645, 477 N.E.2d 1099; Bono v. Bono, 157 A.D.2d 763, 764, 550 N.Y.S.2d 370; Howard v. Howard, 120 A.D.2d 567, 568, 501 N.Y.S.2d 903).
In the instant case, the plaintiff alleged, inter alia, that the defendant had breached the terms of their written separation agreement by failing to reimburse her for medical expenses incurred by the children which were not covered by the medical insurance provided by the defendant. Paragraph 10(c) of the parties' agreement simply provides that the defendant's obligation in this regard is to pay for and keep in full force and effect Blue Cross and other medical and dental policies covering the children. Accordingly, it was error to allow the plaintiff to introduce parol evidence with respect to this clause, and it was also error to award her a money judgment on an item for which the defendant was not obligated to pay pursuant to the terms of the separation agreement.
The court also erred in dismissing the defendant's counterclaim to recover certain alleged overpayments of child support on the ground that it was "not brought timely". Recovery of any overpayments made during the six-year period prior to the date the counterclaim was interposed is not barred by the Statute of Limitations (see, Jacobs v. Patterson, 112 A.D.2d 402, 492 N.Y.S.2d 59). Further, the principles of laches or estoppel cannot be applied here. It is settled that laches and estoppel are affirmative defenses which must be pleaded (see, Markwica v. Davis, 64 N.Y.2d 38, 42, 484 N.Y.S.2d 522, 473 N.E.2d 750; Surlak v. Surlak, 95 A.D.2d 371, 383, 466 N.Y.S.2d 461; Glenesk v Guidance Realty Corp., 36 A.D.2d 852, 321 N.Y.S.2d 685). A failure to plead those affirmative defenses may be remedied by amendment of the answer (see, Surlak v. Surlak, supra ). Contrary to the finding of our dissenting colleague, in the instant case, not only did the plaintiff fail to plead, in her reply to the counterclaim, the affirmative defenses, but she also failed to seek to amend her pleadings. While the plaintiff orally moved to amend her pleadings to conform to the proof at the trial, that application was made at the end of the plaintiff's direct examination and solely with respect to bringing up to date the amount of tuition payments for parochial school demanded in the complaint.
Moreover, despite the feeling of outrage expressed by our dissenting colleague over what is perceived to be a grave injustice in requiring the plaintiff to reimburse the defendant for the overpayments, it should be pointed out that we have not decided the merits of that issue. Our decision herein is purely a procedural one not involving the merits, based in part upon the plaintiff's failure to raise the affirmative defenses of laches or estoppel in her pleadings.
Accordingly, this case must be remitted to the Supreme Court, Queens County, for a new hearing on the merits of the defendant's counterclaim, to determine whether he is entitled to a recoupment of overpayments and, if so, to determine the amount thereof and the method of payment (see, Jacobs v. Patterson, 112 A.D.2d 402, 492 N.Y.S.2d 59, supra; Fry v. Fry, 279 App.Div. 122, 108 N.Y.S.2d 227, affd 304 N.Y. 889, 110 N.E.2d 501).
MILLER, Justice, concurs in part and dissents in part and votes to modify the order appealed from by deleting the provision thereof which awarded the plaintiff the principal sum of $887.43, and as so modified, to affirm the resettled judgment insofar as appealed from, without costs or disbursements, with the following memorandum:
I concur with my colleagues' conclusion that the Supreme Court erred in interpreting the parties' separation agreement so as to require the defendant to pay for the children's unreimbursed medical expenses, since the agreement only provides for payment for the children's Blue Cross and other identified insurance coverage. However, I dissent from their further conclusion that the Supreme Court erred in dismissing the defendant's counterclaim for alleged overpayments of child support of over $3,000 made in the course of a three-and-one-half-year period. By finding the doctrine of equitable estoppel or laches inapplicable, the majority has determined not merely the procedural aspects of this case, but its ultimate outcome. Absent those defenses, sums overpaid by the defendant due to his error three and one-half years ago or earlier, must be repaid by the plaintiff, notwithstanding that she has expended those sums on the children. My dissent stems from my conviction that the doctrine of equitable estoppel merits application under these circumstances. While the majority correctly states that the defendant's claim is not barred by the Statute of Limitations, if ever the doctrine of equitable estoppel merits application, the circumstances herein are manifestly compelling.
The defendant testified that he misinterpreted the terms of the parties' separation agreement which required him to increase child support in proportion to his increase in salary, and when his maintenance obligations terminated, to increase his basic child support obligation from $125 to $150 per week, per child. As a result of his alleged misreading of the separation agreement (prepared by his attorney) he claims he made overpayments of $3,055 of child support over a period of three and one-half years. The record is vague in regard to the time when he claims to have discovered his alleged error. In any event, there is no evidence that he sought to recover these sums prior to the wife's commencement of the instant action for reimbursement for expenditures she made for the children's medical and educational expenses. Indeed, we may reasonably infer from the record that but for the plaintiff's action seeking reimbursement, the defendant would not have sought to recover these alleged overpayments by way of a counterclaim, which appears to be no more than a common knee-jerk reaction, a prototypical tit-for-tat response to an initial law suit.
The plaintiff contends that these alleged "overpayments" were made voluntarily as gifts, that the husband never intended to recoup them, and that, in any event, if they were made in error, she would be unjustly prejudiced if required to repay them after...
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