Weaver v. Weaver

• Citation: 198 A.D.3d 1140,156 N.Y.S.3d 481
• Decision Date: 21 October 2021
• Docket Number: 531541
• Parties: Stanton E. WEAVER, Appellant, v. Mary E. WEAVER, Respondent.
• Court: New York Supreme Court Appellate Division

198 A.D.3d 1140
156 N.Y.S.3d 481

Stanton E. WEAVER, Appellant,
v.
Mary E. WEAVER, Respondent.

531541

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

Calendar Date: September 14, 2021
Decided and Entered: October 21, 2021

156 N.Y.S.3d 483

Stanton E. Weaver, Canajoharie, appellant pro se.

Becker, Glynn, Muffly, Chassin & Hosinski LLP, New York City (William H. Newman of counsel) and Pro Bono Appeals Program, Buffalo (Johnathan S. Reiner of counsel), for respondent.

Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

156 N.Y.S.3d 484

198 A.D.3d 1140

Appeals (1) from an order of the

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Supreme Court (Tomlinson, J.), entered March 12, 2020 in Fulton County, which, among other things, (a) denied plaintiff's motion for leave to renew and, upon reargument, adhered to its prior finding, and (b) granted defendant's motion for enforcement of the provision in the judgment of divorce regarding plaintiff's pension, and (2) from an order of said court, entered May 26, 2020 in Fulton County, which granted defendant's motion for counsel fees.

The parties were married in April 1998 and have one child (born in 2003). In September 2017, plaintiff (hereinafter the husband) brought an action for divorce against defendant (hereinafter the wife). On the day of trial, the parties placed an opting out agreement on the record, which settled matters concerning spousal maintenance, child support and distribution of personal and real property. In December 2018, Supreme Court (Skoda, J.) granted a judgment of divorce that incorporated, but did not merge, the agreement.

The agreement provided, as relevant here, that the husband was entitled to stay in an apartment located at the matrimonial residence for six months, at $500 per month, with proration of said rent and refund of any overpayment to the husband on the event of his relocation. It further provided that the wife was entitled to 50% of the marital portion of the husband's pension benefits based on the Majauskas formula. To that end, the agreement directed that the wife submit a qualified domestic relations order (hereinafter QDRO) and, upon the employer's approval of said QDRO, that the husband immediately make application for his pension. As to the husband's monthly support obligations, the agreement directed specified sums for spousal maintenance and child support from November 10, 2017 through March 1, 2018, at which point the obligations would increase. Lastly, the agreement acknowledged that the husband's maintenance and child support obligations would require revision after December 19, 2018, the date on which the husband's full salary would come to an end and the husband would receive either his disability pension and/or long-term disability benefits. However, the agreement specifically provided that the husband would continue to make payments in the amounts stated in the agreement until new amounts had been agreed to by the parties or court intervention.

By order to show cause dated January 2019, the husband,

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who was self-represented,¹ sought possession of a snowblower and gas grill, as well as reimbursement of snow removal expenses incurred by him. The wife opposed the husband's order to show cause and cross-moved for arrears, claiming that the husband failed to pay court-ordered child support and spousal maintenance. The wife further sought reimbursement for expenses to remove or dispose of property that the husband left behind when he vacated the apartment and sought counsel fees pursuant to Domestic Relations Law §§ 237(b) and 238. During ensuing oral argument on the motions, the husband raised a new claim for a rent refund, based on prorating the rent to December 8, 2018 – the date he claimed he vacated the apartment.

By October 2019 order, Supreme Court (Tomlinson, J.) awarded the wife the snowblower and the gas grill and denied the husband's request for reimbursement of snow removal expenses and a refund of the

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rent. The court further determined that the husband owed the wife spousal maintenance and child support arrears. Lastly, the court awarded the wife counsel fees.

The husband subsequently moved for leave to renew and/or reargue, particularly challenging the denial of the rent refund, calculation of maintenance and child support arrears and the award of counsel fees. The wife cross-moved for counsel fees and related costs, as well as sanctions against the husband based upon his alleged frivolous conduct. Meanwhile, the wife filed an order to show cause dated December 2019, seeking, among other things, to enforce the terms of the divorce judgment by directing the husband to immediately apply for his disability pension, as well as counsel fees. The husband opposed the wife's order to show cause.

In a March 2020 order, Supreme Court denied the husband's motion to renew and/or reargue in its entirety and granted the wife's show cause application to require the husband to immediately apply for his disability pension, and further granted the wife's request for counsel fees, subject to a future hearing. In May 2020, following said hearing, Supreme Court awarded the wife counsel fees and disbursements in the sum of $7,590.50. The husband appeals from both the March 2020 and May 2020 orders.

Although CPLR 2221(f) provides for a combined motion for leave to reargue and leave to renew, the requirements for a

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motion to reargue (see CPLR 2221[d] ) and a motion to renew (see CPLR 2221[e] ) are distinct, and, as such, each item of relief sought is to be identified and supported separately (see CPLR 2221[f] ).² "A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion" ( Wright v. State of New York, 192 A.D.3d 1277, 1278, 145 N.Y.S.3d 156 [2021] [internal quotation marks, ellipsis and citations omitted]; see CPLR 2221[e][2] ). To succeed on a motion to reargue, a party must demonstrate that the court "overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision" ( Matter of Reed v. Annucci, 175 A.D.3d 1700, 1701, 108 N.Y.S.3d 536 [2019] [internal quotation marks and citation omitted]; see CPLR 2221[d][2] ).

A perusal of the record confirms that the husband failed to present any new facts in support of this motion and, as such, despite its designation as a combined motion, it is, in fact, exclusively a motion to reargue (see DeMaille v. State of New York, 166 A.D.3d 1405, 1408, 89 N.Y.S.3d 403 [2018] ). "Although, generally, no appeal lies from an order denying a motion to reargue, where the court actually addresses the merits of the moving party's motion, we will deem the court to have granted reargument and adhered to its prior decision – notwithstanding language in the order indicating that reargument was denied" ( Matter of...