Sparacio v. Sparacio

• Decision Date: 14 May 2001
• Parties: (A.D. 2 Dept. 2001) Matthew J. Sparacio, appellant, v Marilyn Sparacio, respondent. 2000-07514 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 204

724 N.Y.S.2d 204 (A.D. 2 Dept. 2001)

Matthew J. Sparacio, appellant, v Marilyn Sparacio, respondent.

2000-07514

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

May 14, 2001

David M. Bushman, Nanuet, N.Y., for appellant.

Allan Wolk, New City, N.Y., for respondent.

DAVID S. RITTER, J.P. GABRIEL M. KRAUSMAN SONDRA MILLER SANDRA J. FEUERSTEIN, JJ.

In an action to recover damages for fraud and breach of contract, the plaintiff appeals from an order of the Supreme Court, Rockland County (Meehan, J.), dated July 5, 2000, which granted the defendant's motion pursuant to CPLR 3211(a)(1) and (5) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

The parties, former husband and wife, were divorced in 1993. By separation agreement dated May 17, 1993, incorporated but not merged into the judgment of divorce, the plaintiff agreed, inter alia, to pay child support for the parties' daughter, Marlene. Suspecting that since 1997 Marlene has not been living with the defendant, the plaintiff filed a petition in the Family Court on March 29, 1999, seeking to terminate his child support obligation. By order dated June 16, 1999, the Family Court determined that Marlene became emancipated on March 29, 1999, and, on that basis, terminated the plaintiff's child support obligation. In March 2000, the plaintiff commenced this plenary action against the defendant alleging that she committed fraud and breached the separation agreement by, inter alia, accepting child support payments for Marlene after she was emancipated as defined therein, which terminated such obligation. The defendant moved to dismiss the complaint on the ground that the action was barred by res judicata and/or collateral estoppel. In the order appealed from, the Supreme Court granted the defendant's motion to dismiss the complaint based, in effect, on collateral estoppel. The Supreme Court noted that all of the plaintiff's claims turned on the date that Marlene became emancipated, an issue that had been decided in the Family Court proceeding. Thus, the Supreme Court concluded, collateral estoppel prevented the plaintiff from relitigating the alleged date of Marlene's emancipation. We affirm, although for reasons different from those relied on by the Supreme Court.

By statute, the Family Court could not have terminated the plaintiff's child support obligation as ordered by the judgment of divorce prior to March 29, 1999, the date he filed his petition seeking that relief (see, Family Ct Act § 449; Greene v Greene, 90 A.D.2d 533). Thus, in the context of the prior Family Court proceeding, the plaintiff did not have a full and fair opportunity to litigate his claim that Marlene was actually emancipated in 1997 (see, D'Arata v New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659; Kaufman v Lilly & Co., 65 N.Y.2d 449). Further, the plaintiff could not have litigated his claims of fraud and breach of contract before the Family Court (see, Gramatan Home Investors Corp. v Lopez, 46 N.Y.2d 481, 485; Glass v Glass, 186 A.D.2d 787; Feeney v...