St. Martin v. St. Martin
| Decision Date | 09 April 2013 |
| Citation | 2013 N.Y. Slip Op. 23120,967 N.Y.S.2d 600,39 Misc.3d 1020 |
| Parties | Joseph C. ST. MARTIN, Plaintiff, v. Sandra E. ST. MARTIN, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Joseph C. St. Martin, plaintiff pro se.
Sandra E. St. Martin, defendant pro se.
This is defendant Sandra E. St. Martin's 1 post divorce motion seeking a finding of contempt and that plaintiff be punished with a fine or incarceration. Defendant avers that, pursuant to a divorce judgment of this court dated September 18, 2009, she was awarded the marital residence. Further, a comprehensive Separation and Property Settlement Agreement made defendant responsible for paying the first mortgage and plaintiff responsible for paying the second mortgage on the marital residence. The Judgment of Divorce incorporated, but did not merge the Agreement. Defendant brought a similar motion for contempt on these grounds and the court found plaintiff in contempt and levied a fine of $250. See Decision and Order, May 8, 2012, Fisher, J. Pursuant to the May 8, 2012, Decision and Judgment, the court found that the parties' Separation and Property Settlement Agreement was incorporated by reference into the parties' Judgment and that, by virtue thereof, “Husband agrees to payment [sic] the second mortgage in his name,” held by Bank of America, at least on a monthly basis as it becomes due. Defendant's affidavit on this application avers that plaintiff still has not made any payments on the second mortgage.
Plaintiff has not responded to this motion in writing, but at oral argument conceded that he has not made any payment and contends that, following his bankruptcy in May 2012, he is no longer obligated to pay the second mortgage. Plaintiff also maintains that, following last year's decision, he duly paid the $250 fine and that the decision required him to do nothing more. In particular, he points to the language in that decision (at pp. 3–4) in which the court found that the agreement did not unequivocally require plaintiff to “pay off” the second mortgage in a lump sum. He extrapolates from this that the court found that it was ambiguous whether plaintiff was obligated at all to make payments on the second mortgage in his name.
As explained to him at oral argument, he is in error on the latter point. The court found in that decision that the language in the Agreement—“The husband agrees to payment [sic] the second mortgage in his name”—“supports the view that husband was to continue making the monthly payments on the second mortgage, ...” (at p. 3). The court further found that it was “sufficiently clear and unequivocal that husband was responsible for the mortgage payments, either monthly or by complete payoff” (at p. 4). A finding of contempt was made from the uncontroverted fact that he had made no payments since the “catch up” payments he made shortly after entry of the judgment. As stated, plaintiff does not contest defendant's allegation that no payments have been made since the May 2012 decision. Indeed, it appears from documents handed up in open court that the Bank of America, in a letter dated January 10, 2013 (hereby made a part of), gave notice of its intent to accelerate unless $9,115.17 was paid to it by February 19, 2013. Since that did not occur, the threatened foreclosure process has presumably begun.
Domestic Relations Law 245 provides:
Where a spouse, in an action for divorce ... or for the enforcement in this state of a judgment for divorce, separation, annulment or declaration of nullity of a void marriage rendered in another state, makes default in paying any sum of money as required by the judgment or order directing the payment thereof ... the aggrieved spouse may make application pursuant to the provisions of section seven hundred fifty-six of the judiciary law to punish the defaulting spouse for contempt ....
Enforcement via contempt pursuant to the Domestic Relations Law is only permitted upon a showing that less drastic enforcement measures are unavailable. Jackson v. Jackson, 7 A.D.3d 404, 776 N.Y.S.2d 477 (1st Dept.2004). Here, because the parties' agreement provides that plaintiff is to pay third-party Bank of America on a mortgage in his name only, resort to other less drastic enforcement measures, which would only provide funds to defendant (not the third party), are unavailable to defendant to enforce the terms of the parties' agreement.2 Further, inasmuch as “[t]he judgment of divorce directed the parties to comply with the terms of the ... [agreement]” “as if such terms or provisions were set forth in its entirety herein [i.e., the judgment of divorce],” a court may properly find plaintiff in contempt for failing his obligation to make payment on the second mortgage, Gordon v. Gordon, 210 A.D.2d 929, 929–30, 621 N.Y.S.2d 263 (4th Dept.1994), if not discharged in bankruptcy, despite the lack of separate decretal paragraphs in the judgment itself directing that such payments be made. Burn v. Burn, 101 A.D.3d 488, 489, 956 N.Y.S.2d 19 (1st Dept.2012).
Plaintiff commenced his bankruptcy proceeding in 2011, which resulted in a discharge of all dischargeable debts under 11 U.S.C. 727 by order dated May 3, 2012. The court had no knowledge of these proceedings on the prior application for contempt. In open court on this application, plaintiff handed up the Bankruptcy Court's “Notice of Entry,” but he later supplied a copy of the actual discharge order. As both parties are unrepresented, the court obtained the gracious cooperation of the Western District Bankruptcy Court, which e-mailed the docket sheet together with the Chapter 7 Petition and various schedules (hereby made a part hereof). MJD Const., Inc. v. Woodstock Lawn & Home Maintenance, 293 A.D.2d 516, 517, 740 N.Y.S.2d 402 (2d Dept.2002) (); RGH Liquidating Trust v. Deloitte & Touche LLP, 71 A.D.3d 198, 207–08, 891 N.Y.S.2d 324 (1st Dept.2009) (same) (collecting cases), rev'd on other gr.,17 N.Y.3d 397, 931 N.Y.S.2d 22, 955 N.E.2d 329 (2011). The first and second mortgages to Bank of America were duly listed, and was defendant who was listed as being owed “domestic support obligations” (Sch. E) consisting of “child support” in the listed amount of $4,654.94. She was also listed as a “co-debtor” (Sch. H), but she was not listed as a creditor with respect to plaintiff's obligation to pay the second mortgage. Accordingly, defendant presumably had knowledge of the bankruptcy proceedings and opportunity to contest the discharge of the second mortgage. However, it appears from the docket sheet that no such objection was made by her.
Accordingly, the court finds that the discharge granted to the plaintiff encompassed his personal liability to Bank of America on the second mortgage. As it stands now, the liability to Bank of America is discharged as to plaintiff's personal liability, thus leaving the bank free to pursue its in rem remedy against defendant and the property. Johnson v. Home State Bank, 501 U.S. 78, 82–83, 111 S.Ct. 2150, 2153, 115 L.Ed.2d 66 (1991); citing 11 U.S.C. § 524(a)(1), § 522(c)(2); In re Dumont, 581 F.3d 1104, 1108 (9th Cir.2009) (); In Carman v. European Am. Bank & Trust Co., 78 N.Y.2d 1066, 1067, 576 N.Y.S.2d 90, 581 N.E.2d 1345 (1991); McArdle v. McGregor, 261 A.D.2d 591, 688 N.Y.S.2d 919 (2d Dept.1999).
Although the Fourth Department has opined in dicta that a mortgagor may, despite the discharge of a mortgage in bankruptcy, “reaffirm” that debt by entering into a modification agreement, Berretta v. Berretta, 201 A.D.2d 886, 887, 608 N.Y.S.2d 34 (4th Dept.1994), the court cannot discern how that could be done under federal law as it now exists. Here, plaintiff took advantage of a procedure sanctioned in the Second Circuit, known as the “ride through option” under which a debtor may retain possession of real property without being required to reaffirm or redeem under 11 U.S.C. § 521(a)(2)(A)-(B) so long as the payments to the creditor remain current. See In re Caraballo, 386 B.R. 398, 401–02 & n. 5 (D.Conn.2008); In re Sosa, 443 B.R. 263, 268–69 (D.R.I.2011) (). See also, BankBoston, N.A. v. Suarez, 198 F.3d 234, 1999 WL 753381 (2d Cir. Summary Order, September 20, 1999) (involving real property); In re Boodrow, 126 F.3d 43, 53 (2d Cir.1997) () (involving personal property). Plaintiff listed both mortgages on Part A of his “Chapter 7 Individual Debtor's Statement of Intention,” not claiming the property as exempt and announcing his intention to “reaffirm” each debt, the first mortgage because his “ex-wife [was] to purchase/assume mortgage” and the second mortgage by reason of his intention to “negotiate with lender.” Plaintiff has admitted that he is not current with the second mortgage, and he has effectively admitted that he has not re-negotiated with the lender by virtue of his open court proclamation that he is no longer liable to pay that mortgage.
Despite the Fourth Department's reference to reaffirmation, a reaffirmation agreement at this stage is impossible because of the entry of the discharge order. 11 U.S.C. § 524(c)(1)(reaffirmation agreement “is enforceable ... only if (1) such agreement was made before the granting of the discharge under 727”). Bankruptcy law requires that the debtor file a “Statement of Intent” as a means...
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