Nicol v. Nicol

• Decision Date: 31 January 2020
• Docket Number: 873,CA 19–00006
• Citation: 179 A.D.3d 1472,118 N.Y.S.3d 833
• Parties: Patrick A. NICOL, Plaintiff–Appellant, v. Tara M. NICOL, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1472

118 N.Y.S.3d 833

Patrick A. NICOL, Plaintiff–Appellant,

v.Tara M. NICOL, Defendant–Respondent.

873

CA 19–00006

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

Entered: January 31, 2020

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is modified on the law by vacating those parts denying the motion insofar as it sought a downward modification of plaintiff's child support obligation with respect to the health insurance premiums and insofar as it sought attorney's fees, and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Plaintiff appeals from a decision denying his motion seeking, in effect, a downward modification of his child support obligation, enforcement of certain terms of the parties' separation and settlement agreement (agreement), and attorney's fees. As a preliminary matter, although not raised by the parties and although "[n]o appeal lies from a mere decision" ( Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 (4th Dept. 1987) ; see generally CPLR 5501[c] ; 5512[a] ), we conclude that the paper appealed from meets the essential requirements of an order, and we therefore treat it as such (see Matter of Louka v. Shehatou, 67 A.D.3d 1476, 1476, 888 N.Y.S.2d 841 (4th Dept. 2009) ).

On appeal, plaintiff contends that defendant breached the agreement by failing to immediately make payment on a jointly held student loan and that Supreme Court erred in failing to award him damages for the alleged breach. Plaintiff's motion insofar as it sought enforcement of the agreement, which was incorporated but not merged in the parties' judgment of divorce, appears to have been made pursuant to Domestic Relations Law § 244, which is not the proper procedure for seeking such damages (see generally Thompson v. Lindblad, 125 A.D.2d 460, 460–461, 509 N.Y.S.2d 389 (2d Dept. 1986) ). Instead, the proper procedure "would be the commencement of a plenary action" ( Petritis v. Petritis, 131 A.D.2d 651, 653, 516 N.Y.S.2d 734 (2d Dept. 1987) ). Thus, we do not address the merits of plaintiff's contention (see generally Anonymous v. Anonymous, 27 A.D.3d 356, 360–361, 814 N.Y.S.2d 21 (1st Dept. 2006) ; Thompson, 125 A.D.2d at 460–461, 509 N.Y.S.2d 389 ; Barratta v. Barratta, 122 A.D.2d 3, 5, 504 N.Y.S.2d 175 (2d Dept. 1986) ).

Plaintiff also contends that the court erred in summarily denying the motion insofar as it sought a downward modification of his child support obligation with respect to the health insurance premiums. We agree. As an initial matter, the court erred in denying the motion to that extent on the ground that plaintiff had, in effect, implicitly waived his right to seek a downward modification by failing to take remedial action after defendant informed him of the cost increase for the children's health insurance premiums. It is well settled that a waiver " ‘should not be lightly presumed’ and must be based on ‘a clear manifestation of intent’ to relinquish" a known right ( Auburn Custom Millwork, Inc. v. Schmidt & Schmidt, Inc., 148 A.D.3d 1527, 1531, 50 N.Y.S.3d 635 (4th Dept. 2017), quoting Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96, 104, 817 N.Y.S.2d 606, 850 N.E.2d 653 [2006] ; see also Matter of McManus v. Board of Educ. of Hempstead Union Free School Dist., 87 N.Y.2d 183, 189, 638 N.Y.S.2d 411, 661 N.E.2d 984 [1995] ; Ferraro v. Janis, 62 A.D.3d 1059, 1060, 880 N.Y.S.2d 201 (3d Dept. 2009) ). We conclude that plaintiff's inaction here did not constitute a waiver inasmuch as "inaction or silence ... cannot constitute a waiver" ( Coniber v. Center Point Transfer Sta., Inc., 137 A.D.3d 1604, 1607, 27 N.Y.S.3d 763 (4th Dept. 2016) ; see Agati v. Agati, 92 A.D.2d 737, 737, 461 N.Y.S.2d 95 (4th Dept. 1983), affd 59 N.Y.2d 830, 464 N.Y.S.2d 743, 451 N.E.2d 490 [1983] ; Matter of Hinck v. Hinck, 113 A.D.3d 681, 683, 979 N.Y.S.2d 116 (2d Dept. 2014) ).

We further conclude that plaintiff was entitled to a hearing on that part of his motion seeking a downward modification of child support inasmuch as he made a prima facie showing of a substantial change in circumstances (see Isichenko v. Isichenko, 161 A.D.3d 833, 834–835, 75 N.Y.S.3d 530 (2d Dept. 2018) ; Bergman v. Bergman, 84 A.D.3d 537, 540, 923 N.Y.S.2d 460 (1st Dept. 2011) ; Schelter v. Schelter, 159 A.D.2d 995, 996, 552 N.Y.S.2d 477 (4th Dept. 1990) ; see generally Domestic Relations Law § 236[B][9][b][1] ). Indeed, plaintiff submitted evidence establishing that his 50% share of the health insurance premiums had increased from $50.15 per week to $113.00 per week, which amounted to nearly 18% of his gross income. We therefore modify the order by vacating that part denying plaintiff's motion insofar as it sought a downward modification of his child support obligation with respect to the health insurance premiums, and we remit the matter to Supreme Court for a hearing on that part of plaintiff's motion.

In light of that determination, we also agree with plaintiff that the court erred in summarily denying that part of his motion seeking attorney's fees. We therefore further modify the order by vacating that part denying the motion with respect to attorney's fees, and we remit the matter to Supreme Court to determine that part of plaintiff's motion (see Cavallaro v. Cavallaro, (Appeal No. 2), 278 A.D.2d 812, 812, 718 N.Y.S.2d 538 (4th Dept. 2000), lv dismissed 96 N.Y.2d 792, 725 N.Y.S.2d 641, 749 N.E.2d 210 [2001] ).

We have reviewed plaintiff's remaining contention and conclude that it lacks merit.

All concur except DeJoseph, J., who dissents and votes to dismiss in accordance with the following memorandum:

I disagree with the majority's decision to treat the decision appealed from as an order. I therefore dissent and would dismiss the appeal.

In 1987, this Court held that "[n]o appeal lies from a mere decision" ( Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 (4th Dept. 1987) ). In reaching that conclusion, we relied on, inter alia, CPLR 5512(a), titled "appealable paper," which provides that "[a]n initial appeal shall be taken from the judgment or order of the court of original instance." Until today, we have routinely followed that settled principle (see Matter of Town of Leray v. Village of Evans Mills, 161 A.D.3d 1593, 1593, 73 N.Y.S.3d 775 (4th Dept. 2018) ; Infarinato v. Rochester Tel. Corp., 158 A.D.3d 1063, 1063, 67 N.Y.S.3d 884 (4th Dept. 2018) ; Boulter v. Boulter [appeal No. 1], 147 A.D.3d 1512, 1512, 46 N.Y.S.3d 815 (4th Dept. 2017) ; O'Reilly–Morshead v. O'Reilly–Morshead, 147 A.D.3d 1562, 1562, 47 N.Y.S.3d 725 (4th Dept. 2017) ; Eddy v. Antanavige, 126 A.D.3d 1403, 1403, 3 N.Y.S.3d 699 (4th Dept. 2015) ; Meenan v. Meenan, 103 A.D.3d 1277, 1277–1278, 960 N.Y.S.2d 285 (4th Dept. 2013) ; Partners Trust Bank v. State of New York, (Appeal No. 1], 90 A.D.3d 1514, 1514, 934 N.Y.S.2d 886 (4th Dept. 2011) ; Knope v. Knope, 77 A.D.3d 1320, 1321, 907 N.Y.S.2d 891 (4th Dept. 2010) ; Plastic Surgery Group of Rochester, LLC v. Evangelisti, 39 A.D.3d 1265, 1266, 832 N.Y.S.2d 840 (4th Dept. 2007) ; Pecora v. Lawrence, 28 A.D.3d 1136, 1137, 816 N.Y.S.2d 772 (4th Dept. 2006) ; Matter of Baker v. Baker–Kelly, 24 A.D.3d 1263, 1263, 805 N.Y.S.2d 888 (4th Dept. 2005) ; Matter of Viscomi v. Village of Herkimer, 23 A.D.3d 1048, 1048, 803 N.Y.S.2d 504 (4th Dept. 2005) ; Darien Lake Theme Park & Camping Resort, Inc. v. Contour Erection & Siding Sys., Inc., 21 A.D.3d 1280, 1280, 801 N.Y.S.2d 175 (4th Dept. 2005) ; State of New York v. Newell, 15 A.D.3d 880, 880, 788 N.Y.S.2d 886 [4th Dept 2005] ; Matter of Amanda G., 281 A.D.2d 954, 954, 722 N.Y.S.2d 208 (4th Dept. 2001) ; Cook v. Komorowski, 273 A.D.2d 924, 924, 710 N.Y.S.2d 827 (4th Dept. 2000) ; Kreutter v. Goldthorpe, 269 A.D.2d 870, 870, 703 N.Y.S.2d 774 (4th Dept. 2000) ; Kulp v. Gannett Co., 259 A.D.2d 970, 970, 688 N.Y.S.2d 455 (4th Dept.1999) ). We have not been alone in applying the legal principle that no appeal lies from a decision. Indeed, all of the other Departments of the Appellate Division, as well as the Court of Appeals, have applied...