Lomaglio v. Lomaglio

• Citation: 2013 N.Y. Slip Op. 23438,42 Misc.3d 827,978 N.Y.S.2d 783
• Parties: Larry J. LOMAGLIO, Plaintiff, v. Carmen M. LOMAGLIO, Defendant.
• Decision Date: 20 December 2013
• Court: New York Supreme Court

42 Misc.3d 827

978 N.Y.S.2d 783

2013 N.Y. Slip Op. 23438

Larry J. LOMAGLIO, Plaintiff,

v.Carmen M. LOMAGLIO, Defendant.

Supreme Court, Monroe County, New York.

Dec. 20, 2013.

Terrence Brown–Steiner, Esq., East Rochester, attorney for plaintiff.

Richard Levin, Esq., Webster, attorney for defendant.

RICHARD A. DOLLINGER, J.

More than a year ago, this court, citing an old refrain from a Gilbert & Sullivan operetta, asked whether a trial court could “ever” re-interpret what the court considered to be an ambiguous 2000 Appellate Division decision involving this couple. Lo Maglio v. Lo Maglio, 273 A.D.2d 823, 709 N.Y.S.2d 762 (4th Dep't 2000). Quoting Captain Corcoran in H.M.S. Pinafore, this court concluded that such a reinterpretation of an appellate decision by a trial court “hardly ever” happened and then this court, relying on an unequivocal Legislative command, did just that, modifying what this court considered a somewhat oblique directive in the 2000 Appellate Division decision for the husband to provide allegedly “permanent” health insurance for his wife. Lomaglio v. Lomaglio, 35 Misc.3d 1224(A), 2012 WL 1676768 (Sup.Ct. Monroe Cty.2012).

When the matter was again appealed to the Appellate Division, the appellate court subsequently reversed this court's determination, citing res judicata, a raft of other legal theories improvidently ignored by this court and held that those doctrines barred “relitigation of previously adjudicated disputes” even if “erroneously decided, whether due to oversight by the parties or error by the courts.” Lomaglio v. Lomaglio, 104 A.D.3d 1182, 1183, 961 N.Y.S.2d 653 (4th Dept.2013), rev'g35 Misc.3d 1224(A), 2012 WL 1676768 (Sup.Ct. Monroe Cty.2012). In so holding, the Appellate Division in 2013 joined the Captain in H.M.S. Pinafore, and delivered a decisive “no, never” to this court's attempt to harmonize the prior Appellate Division decision and specific provisions of the Domestic Relations Law.¹

With the matter remanded, this court now considers an application to enforce the 2000 Appellate Division order, as mandated by the 2013 Appellate Division decision and require that the husband provide permanent “medical insurance coverage,” the “same” coverage as he provided during his marriage, to his long divorced and estranged wife, even though he has no current maintenance obligation.² In its decision to reverse the decision of this court, the Appellate Division in 2013 stated that the law required it to:

deny that part of plaintiff's cross motion seeking an order terminating his obligation to provide defendant with the same level of medical insurance coverage that he provided during the marriage, grant that part of defendant's motion seeking an order directing plaintiff to provide defendant with that medical insurance coverage, and remit the matter to Supreme Court for further proceedings on the remaining relief requested in defendant's motion.

Lomaglio v. Lomaglio, 104 A.D.3d 1182, 1183, 961 N.Y.S.2d 653 (4th Dept.2013), rev'g35 Misc.3d 1224(A), 2012 WL 1676768 (Sup.Ct. Monroe Cty.2012). This court, having parsed the 2000 decision of the Appellate Division in its original decision and, apparently have done so imprudently, is now cautious in considering what the appellate court has directed this court to do. As this court reads the decision, the Appellate Division has ordered that this court issue an order that the husband shall provide the wife with “that medical insurance coverage.” The appellate court's use of the word “that” incorporates the earlier requirement in the previous phrase of its opinion that the husband “provide defendant [the wife] with the same level of medical insurance coverage that he provided [to her] during the marriage.” Importantly, this court notes that the Appellate Division, despite the obvious opportunity to do so, did not direct this court to order “permanent coverage” to the wife. The lack of that express direction raises a question as to the higher court's intentions: it is unclear, in this court's mind, whether the Appellate Division, expressly requires that this court order the husband to provide “permanent” medical insurance coverage to his wife. For some reason, the higher court, when asked to advise this court on whether its 2000 decision was “ambiguous,” has simply instructed this court to “do what you were told to do” and not specified exactly what it wanted done. Nonetheless, despite a clear direction, this court can only conclude that the Appellate Division—both in 2000 and 2013—has ordered this court to have the husband provide “permanent medical insurance” coverage to his wife.

In this matter, the court, while preferring not to nit-pick the words of the Appellate Division, must nonetheless also decide what the word “provide” means in this case, as the proof suggests that the husband and wife have different versions of what this word means in the Appellate Division decision: does it require the husband to apply for, obtain and maintain the medical insurance coverage on behalf of his wife—as the wife argues—or does it simply require the husband to pay for the insurance cost after the wife has applied for and obtained the coverage—as the husband argues.

The 2013 Appellate Division decision also directs this court to consider, de novo, the “remaining relief” requested in the original January 4, 2012 order to show cause brought by the wife. 104 A.D.3d 1182, 961 N.Y.S.2d 653. In the original order to show cause, the wife sought a finding of contempt for the husband's “failure to comply with the Appellate Division order,” a fine for such contempt, an order directing the husband to provide the wife “with the same level of medical insurance coverage that he had provided during the marriage,” a money judgment for payment of bills that the wife was forced to pay for herself and for unpaid bills caused by the husband's failure to provide medical coverage and reasonable attorneys fees.

After the decision was rendered by the Appellate Division, the parties conferenced this case and the parties could not agree on the exact nature of the insurance coverage provided by the husband to the wife during the marriage.

In the face of an inability to resolve the nature of the prior coverage, the wife moved:

(A) to hold the husband in contempt for failing to provide health insurance for his wife since 2008;

(B) for an order directing the husband to provide the same level of medical insurance coverage that he provided during the marriage;

(C) for an order defining the level of medical insurance coverage as including a series of specific health-related coverages;

(D) for an order directing that such insurance would continue until either the husband or wife died;

(E) for an order directing the husband to pay bills that the wife had accumulated since 2008; and,

(F) for an award of legal fees to her counsel and to reimburse her for legal fees she had paid already.³

When the husband opposed the motion claiming that there were factual issues to be resolved regarding the type of medical insurance provided during the course of the marriage and the options available for future coverage, this court ordered a hearing on all the issues raised in the motion.

In reviewing this case, the court will not repeat facts already well-documented in the two lower court and two appellate division decisions that this couple have endured. Lomaglio v. Lomaglio, 104 A.D.3d 1182, 961 N.Y.S.2d 653 (4th Dept.2013), rev'g35 Misc.3d 1224(A), 2012 WL 1676768 (Sup.Ct. Monroe Cty.2012); Lo Maglio v. Lo Maglio, 273 A.D.2d 823, 709 N.Y.S.2d 762 (4th Dept.2000). During the hearing, there was a vigorous dispute over the scope and types of coverage that the wife had previously received while married and the method by which the husband claimed he “ provided” medical insurance coverage. The husband also argued that the mandated insurance only applied to “medical insurancecoverage”—excluding dental, vision and other coverages which the wife sought to have covered. At the start of the hearing, the parties stipulated that the wife had the burden of proof to establish the scope and type of coverage that existed during the marriage as a precondition to the court fashioning an order for coverage from 2008, when the coverage was discontinued, into the future.

In the hearing, the wife was the only witness to testify regarding the medical insurance coverage provided by the husband during the term of the marriage.⁴ The wife testified that she had medical coverage, provided through the husband's employer, “pretty much” throughout the marriage and that it was “good coverage.” The wife testified that she had coverage through Preferred Care, a local health maintenance organization. She described the health insurance plan as including medical and other coverage, including dental and vision. When asked to explain the extent of coverage, the wife testified that she had found a copy of an insurance contract from the 1990s, which the attorney suggested was from Preferred Care. The document was found in a file folder at her residence. Her attorney sought to introduce the alleged contract by questioning the wife about her knowledge of the document. After a hearsay objection based on the business records, the court refused to admit the document. When the document was denied admission, the court refused to let the wife testify to the contents of the document because her testimony would have been based on a document that was not admissible. The wife did not call any representatives of Preferred Care or any witness could describe the medical or other coverage provided during the term of the marriage. The wife never called any witnesses from Rochester Institute of Technology, where her husband was employed, to explain the available medical insurance coverage during the period of their marriage.⁵ There was no evidence of whether such coverage was still available to the husband for purchase or at what price....