Vogel v. Vogel

• Decision Date: 06 May 2015
• Docket Number: 2013-08422, 2013-10998
• Citation: 128 A.D.3d 681,9 N.Y.S.3d 97,2015 N.Y. Slip Op. 03829
• Parties: Michael VOGEL, appellant, v. Beverlie VOGEL, respondent.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 681

9 N.Y.S.3d 97

2015 N.Y. Slip Op. 03829

Michael VOGEL, appellant

v.Beverlie VOGEL, respondent.

2013-08422, 2013-10998

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

May 6, 2015.

Law Offices of Kenneth J. Weinstein, P.C., Garden City, N.Y. (Michael J. Langer of counsel), for appellant.

Sari M. Friedman, P.C., Garden City, N.Y. (Andrea B. Friedman of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and BETSY BARROS, JJ.

Opinion

Appeals from (1) an order of the Supreme Court, Nassau County (Maron, J.), dated August 27, 2013, and (2) an order of that court dated November 26, 2013. The order dated August 27, 2013, insofar as appealed from, denied the plaintiff's motion to remove a proceeding entitled Matter of Vogel v. Vogel, pending in the Family Court, Suffolk County, under Docket No. F–15306–12/12B, to the Supreme Court, Nassau County, and to consolidate that proceeding with this action. The order dated November 26, 2013, insofar as appealed from, granted those branches of the defendant's cross motion which were to dismiss the complaint pursuant to CPLR 3211(a)(7) and for an award of costs and an attorney's fee pursuant to 22 NYCRR 130–1.1.

ORDERED that the order dated August 27, 2013, is affirmed insofar as appealed from, without costs or disbursements; and it is further,ORDERED that the order dated November 26, 2013, is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof granting those branches of the defendant's cross motion which were pursuant to CPLR 3211(a)(7) to dismiss the seventh, eighth, and ninth causes of action, and substituting therefor a provision denying those branches of the cross motion, and (2) by deleting the provision thereof granting that branch of the defendant's cross motion which was for an award of costs and an attorney's fee pursuant to 22 NYCRR 130–1.1, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order dated November 26, 2013, is affirmed insofar as appealed from, without costs or disbursements.

The parties were married in 1983 and divorced in 2006. Their separation agreement, which was incorporated but not merged into the judgment of divorce, required the plaintiff to pay child support in the weekly sum of $463.50 for the parties' three children, who were unemancipated at the time the agreement was executed. Such payments were to continue until, inter alia, any of the children reached the age of 18, at which time the plaintiff's child support obligation would be “reduced proportionately by the number of children emancipated.” The separation agreement also expressly provided that any modification thereto had to be in writing.

In December 2012, the defendant commenced a proceeding in the Family Court, Suffolk County, seeking, among other things, an upward modification of the plaintiff's child support obligation with regard to the parties' one remaining unemancipated child. The defendant asserted that the plaintiff was paying one-third of his original child support obligation and that the needs of the unemancipated child had “drastically increased.” She asked the Family Court to increase the plaintiff's child support obligation to 17% of his 2012 earnings.

In an order dated April 19, 2013, the Family Court determined, sua sponte, that the proportional reduction provision in the separation agreement concerning the plaintiff's child support obligation was “not allocated specifically per child” and, therefore, was “not enforceable.” The Family Court concluded that the plaintiff's child support obligation should be recalculated to 17% of the parties' adjusted gross income for the remaining unemancipated child.

The plaintiff did not appeal from the April 2013 Family Court order. Instead, he commenced this action in the Supreme Court, Nassau County, alleging, among other things, that in or around February 2006, the parties orally modified their separation agreement so that “notwithstanding each child's emancipation,” he continued to pay the defendant $463.50 per week as “pre-payments” for “future child support” obligations. According to the plaintiff, he continued making payments in this amount until June 1, 2012. He asserted six causes of action relating to the alleged oral modification and “pre-payments,” including a cause of action seeking a judgment declaring the parties' rights and obligations in accordance with the alleged oral modification and a cause of action to recover damages for the defendant's breach of the alleged oral modification. In the seventh, eighth, and ninth causes of action, the plaintiff alleged various breaches of the parties' written separation agreement.

On the same day he commenced this action, the plaintiff moved to remove the pending support proceeding from the Family Court, Suffolk County, to the Supreme Court, Nassau County, and to consolidate that proceeding with this action. He argued that the Family Court, a court of limited jurisdiction, did not have the authority to recognize the alleged oral modification or “pre-payments” and that, as such, both parties' claims relating to child support should be heard together in the Supreme Court. The defendant opposed the motion and cross-moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(7) and for an award of costs and an attorney's fee pursuant to 22 NYCRR 130–1.1. In an order dated August 27, 2013, the Supreme Court denied the plaintiff's motion for removal and consolidation. Thereafter, in an order dated November 26, 2013, the court granted those branches of the defendant's cross motion which were to dismiss the complaint pursuant to CPLR 3211(a)(7) and for an award of costs and an attorney's fee pursuant to 22 NYCRR 130–1.1.

Contrary to the plaintiff's contention, the Supreme Court properly directed the dismissal of the six causes of action relating to the alleged oral modification of the parties' separation agreement. Generally, “[t]he statute of frauds bars oral modifications to a contract which expressly provides that modifications must be in writing” (B. Reitman Blacktop, Inc. v. Missirlian, 52 A.D.3d 752, 753, 860 N.Y.S.2d 211 ; see General Obligations Law § 15–301 [1 ] ). However, an alleged oral modification is enforceable “if there is part performance that is unequivocally referable to the oral modification” (Parker v. Navarra, 102 A.D.3d 935, 936, 958 N.Y.S.2d 754 ; see Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 344, 397 N.Y.S.2d 922, 366 N.E.2d 1279 ; Hannigan v. Hannigan, 104 A.D.3d 732, 736, 960 N.Y.S.2d 492 ; Healy v. Williams, 30 A.D.3d 466, 467–468, 818 N.Y.S.2d 121 ; Kayser v. Kayser, 18 A.D.3d 441, 442, 795 N.Y.S.2d 250 ; Calica v. Reisman, Peirez & Reisman,

296 A.D.2d 367, 369, 744 N.Y.S.2d 495 ). “ ‘[I]n order to be unequivocally referable, conduct must be inconsistent with any other explanation’ ” (Hannigan v. Hannigan, 104 A.D.3d at 736, 960 N.Y.S.2d 492, quoting Richardson & Lucas, Inc. v. New York Athletic Club of City of N.Y., 304 A.D.2d 462, 463, 758 N.Y.S.2d 321 ; see Kurlandski v. Kim, 111 A.D.3d 676, 677, 975 N.Y.S.2d 98 ; Barretti v. Detore, 95 A.D.3d 803, 806, 944 N.Y.S.2d 166 ; see also Anostario v. Vicinanzo, 59 N.Y.2d 662, 664, 463 N.Y.S.2d 409, 450 N.E.2d 215 ).

Here, in his complaint, and in opposition to the defendant's cross motion, the plaintiff failed to allege acts of part performance that were unequivocally referable to the alleged oral agreement to modify the terms of the parties' separation agreement sufficient to obviate the need for a writing (see Parker v. Navarra, 102 A.D.3d at 937, 958 N.Y.S.2d 754 ; Barretti v. Detore, 95 A.D.3d at 806, 944 N.Y.S.2d 166 ). Affording the plaintiff the benefit...