M.M. v. T.M.

• Decision Date: 23 April 2012
• Docket Number: No. 03–11013.,03–11013.
• Parties: M.M., Plaintiff, v. T.M., Defendant.
• Court: New York Supreme Court

35 Misc.3d 1231

953 N.Y.S.2d 550

2012 N.Y. Slip Op. 50962

M.M., Plaintiff,

v.T.M., Defendant.

No. 03–11013.

Supreme Court, Monroe County, New York.

April 23, 2012.

Francis C. Affronti, Esq. Rochester, Attorney for Plaintiff.

Warren Welch, Esq., Rochester, Attorney for Defendant.

RICHARD A. DOLLINGER, J.

INTRODUCTION

The parties before the court were married for 34 years. When divorced in 2005, they entered into an oral stipulation, and subsequently signed an agreement in December 2005. The parties have stipulated that the maintenance provision in the separation agreement merged into the divorce decree. The maintenance is set at $41,600 annually. The agreement—and subsequent judgment—provided that when the husband's various pensions went into pay status, the amounts paid out to the wife from those pensions would reduce the maintenance payments. The agreement's maintenance article also contained a life insurance provision, which is also an issue now before the court.

The husband admits that he failed to make his monthly maintenance payments from November 2006 through December 2010. In November 2008, the wife commenced, by order to show cause, a proceeding to collect unpaid maintenance and enforce the life insurance provision of the agreement. She alleged civil contempt because of the failure to pay maintenance and to put in place what she alleges is required life insurance coverage. She also sought prejudgment interest on the missed maintenance payments and attorneys fees. At the return date of the motion, the husband appeared without counsel. Thereafter, he eventually moved for relief from his maintenance obligations by filing a cross-motion with the court on January 14, 2009. He did not resume paying maintenance until December 2010, when, as a result of his finding new employment, and the imposition of an income execution, he began to pay again. In the cross-motion and the arguments now before the court, the husband argues that he lost his high-paying employment in 2006 and as a result, was unable to pay the maintenance and therefore, should not be held in contempt. In the alternative, he asks for a downward modification of the maintenance during his period of unemployment. Further, based on his new income from employment secured in March 2010, he seeks a maintenance modification to less than what he committed to pay in the agreement and divorce judgment.

A previous judge issued a decision on the wife's order to show cause, dated February 24, 2009, awarding the wife arrears for December 2006 through November 2008,¹ and reserved decision on arrears due for December 2008, and January 2009. ( McElduff v. McElduff, Sup Ct, Monroe County, Feb. 24, 2009, Lindley, J., at 6, n. 1). The court noted that “the issue of what, if any, arrears should be deemed to have accrued after defendant appeared pro se in this matter in response to the initial order to show cause are reserved for future decision.” Id.

THE MAINTENANCE PAYMENTS FOR DECEMBER 2008 AND JANUARY 2009

The husband does not dispute that the maintenance for this time was never paid. However, he asks this court to find that his cross-motion is effective, regarding any modification, back to the date of the filing of the wife's order to show cause in November 2008 or, in the alternative, from the day of the argument at special term in December 2008 because he raised the issue during oral argument. The court has reviewed the transcript of the December 2008 motion argument. The trial court granted the husband an adjournment to obtain counsel, but there is no evidence that the husband asked for a modification during this session, and he never submitted any written statements in support of the application until January 15, 2009.

The longstanding rule in New York is that modification can only be retroactive to the date of the filing of the request for modification. DRL § 236(B)(9)(b); Yunis v. Yunis, 94 N.Y.2d 787, 788 (1999) (date of application governs under DRL § 236(B)(6)(a)); Ropiecki v. Ropiecki, 941 N.Y.2d 650 (2nd Dept.2012); Malcolm v. Malcolm, 2012 N.Y. Slip Op 30561 (Sup.Ct. Albany Cty.2012) (court can only award maintenance retroactive to the date when the Notice of Motion was filed); S.B. v. G.B., 33 Misc.3d 1212A (Sup.Ct. New York Cty.2011). The date of the filing of the cross-motion is the earliest date that any relief can be granted to the husband. He has failed to show good cause for an order making any downward modification granted retroactive to a date earlier than the date that filing. Jancu v. Jancu, 224 A.D.2d 229 (1st Dept.1996) (retroactive to the date of the cross-motion); Papaioannou v. Tsopelas, 260 A.D.2d 282 (1st Dept.1999). If this court decides a modification in the maintenance is appropriate, the date from which such a modification is calculated is January 15, 2009.

In this court's view, the husband's pro se appearance does not “stop the clock” on his maintenance obligations, even if he made an application during the oral argument for the order to show cause. As Judge Lindley indicated, the husband is “an intelligent and sophisticated businessman with a background in banking.” He appeared before Justice Lindley without counsel and made no cogent argument for relief from his maintenance obligations. By not submitting any sworn statements during that appearance, he deprived his wife and her counsel of an effective rebuttal of his claims at the oral argument. In addition, Justice Lindley, in his written decision after the husband had filed the cross-motion, dismissed the adequacy of the husband's defenses to the claim for arrears in maintenance:

His primary defense is that he could not afford to pay maintenance because he lost his job in March 2006 through no fault of his own. He also alleges that he paid substantial sums to put his youngest son through college, and he takes issue with the initial maintenance determination. None of these defenses constitutes a basis to reduce or eliminate maintenance arrears.

In addition, as Judge Lindley noted in 2009, there was not “even the barest showing of good cause for failing to move sooner.” The court agrees with this assessment, and there was no proof at the hearing to justify any different conclusion.

The wife is entitled to a judgment for the maintenance for the months of December 2008 and January 2009. The court finds that the modification petition was filed on January 14, 2009, and therefore, the amount awarded will be a full month's maintenance for December 2008, and half a months' maintenance for January 2009.

A FINDING OF WILLFULNESS FOR PREJUDGMENT INTEREST ON THE MISSED MAINTENANCE PAYMENTS

The wife also asks for pre-judgment interest on the unpaid maintenance, both on the amount awarded by Judge Lindley, and the amount awarded by this decision. Under Section 244 of the Domestic Relations Law, this court can award pre-judgment interest if the default was wilful and the husband “knowingly, consciously and voluntarily disregarded the obligation.” ²

Before proceeding, this court is struck by the paucity of case law defining “willful” under DRL § 244. The statute seems to define “willful” as a “knowing, conscious and voluntary” failure to comply with a court's directive. See Rainey v. Rainey, 83 AD3d 1477 (4th Dept.2011) (if willful, then prejudgment interest is mandated); Goldkrantz v. Goldkrantz, 82 AD3d 699 (2nd Dept.2011) (upon finding of willful conduct, prejudgment interest on unpaid fees was required); Vincinanzo v. Vincinanzo, 233 A.D.2d 715 (3rd Dept.1996) (payor's “clear disregard of his legal responsibility” and the applicant's “foregoing the use of money that was rightfully hers for a protracted period of time” as a factor in finding willfulness); Lewis v. Weiner, 191 A.D.2d 172 (1st Dept.1993) (hostility toward the plaintiff is certainly not an excuse for willful failure to meet obligations). This seemingly amorphous definition of “willful” under the Domestic Relations Law is mirrored elsewhere in case law and statutes. See American Transit Ins. Co. v. Corcoran, 76 N.Y.2d 977, 980 (1990) (the term “willful” is not defined ..., but we find some guidance as to its unremarkable meaning in a civil regulatory context as “no more than intentional and deliberate”); Levin v. Gallman, 42 N.Y.2d 32, 33 (1977) (defining “willful” under federal law as an act consciously, and voluntarily done and no showing of intent, but only something more than accidental nonpayment is required); Matter of Mallozzi–Petrizzo v. Kelly, 2012 N.Y. Slip Op 30458U (Sup.Ct. New York Cty.2012) (while not defined in the Administrative Code, “willful negligence” is construed as consciously disregarding the consequences of actions); Mueller v. Elderwood Health Care at Oakwood, 31 Misc.3d 1210A (Sup.Ct. Erie Cty.2011) (an act or omission is “willfully” done if done voluntarily, intentionally, and with the specific intent to do something the law forbids or with a specific intent to fail to do something the law requires to be done); Harkin v. WDF, Inc., 30 Misc.3d 1219A (Sup.Ct. New York Cty.2011) (willful has been defined as “[s]aid or done on purpose; deliberate” citing American Heritage Dictionary 1968 [4th ed.2006] ); Coco Invs., LLC v. Zamir Mgr. Riv. Terrace, LLC, 26 Misc.3d 1231A (Sup.Ct. New York Cty.2010) (“willful conduct has been defined as a conscious indifference' or I don't care attitude' which is the prerequisite of wanton behavior”); Daggart of Richmond Inc. v. M & D Firedoor, 24 Misc.3d 1227A, p. 10 (Sup.Ct. Richmond Cty.2009) (the courts have defined willful as meaning “intentional and deliberate”); Congregation Yetev Lev D'Satmar, Inc. v. Nachman Brach, 2008 N.Y. Slip Op 51825U (Sup.Ct. Kings Cty.2008) (“willful” is defined as “voluntary and intentional” (Black's Law Dictionary 1593 [7th ed 1999] ).

Regardless of the precise definition, there can be no doubt that the husband's failure to pay maintenance in this case was “wilful” from the time of November 2006 through January 14, 2009,...