English v. Smith

173 A.D.3d 1022

104 N.Y.S.3d 717

In the Matter of Mary ENGLISH, Respondent,

v.Peter S. SMITH, Appellant.

2018–07362

Docket No. F–7347–17/17A

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

Submitted - May 9, 2019

June 19, 2019

Law Offices of Peter S. Smith, PLLC, Northport, N.Y. (Peter S. Smith pro se of counsel), for appellant.

Mary English, Sullivan's Island, South Carolina, respondent pro se.

REINALDO E. RIVERA, J.P., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (David A. Morris, J.), dated May 24, 2018. The order denied the father's objections to an order of the same court (Darlene Jorif–Mangane, S.M.) dated March 5, 2018, which, after a hearing, determined that the father violated the child support provisions of the parties' separation agreement and directed entry of a money judgment in favor of the mother and against the father in the principal sum of $50,865.

ORDERED that the order dated May 24, 2018, is affirmed, without costs or disbursements.

The parties, who have a child together, divorced in 2015. In their separation agreement, which was incorporated but not merged into the judgment of divorce, the parties agreed that the father would pay the mother child support. The parties further agreed to share equally in the costs of the child's undergraduate and graduate education, extracurricular activities, and uncovered medical, dental, orthodontic, eye care, and mental health treatment. The separation agreement also provided that neither the agreement nor any provisions thereof could be modified or waived except by a writing "duly subscribed and acknowledged by both parties with the same formality as" the separation agreement itself. The parties' child began attending University College in Dublin, Ireland, on a full tuition scholarship in 2015. It is undisputed that the father stopped making child support payments to the mother in May 2015. The father contended that the parties had agreed that they would equally share in paying the child's living expenses in lieu of the father paying child support to the mother. In 2017, the mother filed a violation petition, and, after a hearing, the Support Magistrate determined that the father violated the child support provisions of the separation agreement. The Support Magistrate calculated child support arrears and directed entry of a money judgment in favor of the mother in the principal sum of $50,865. The father filed objections to the Support Magistrate's order, and the Family Court denied the father's objections. The father appeals.

We agree with the Family Court's denial of the father's objections to the Support Magistrate's determination that he violated the separation agreement. A separation agreement entered into by the parties in a matrimonial action constitutes a contract between them subject to the principles of contract interpretation (see Matter of Miller v. Fitzpatrick, 147 A.D.3d 845, 47 N.Y.S.3d 378 ; Ayers v. Ayers, 92 A.D.3d 623, 624, 938 N.Y.S.2d 572 ; De Luca v. De Luca, 300 A.D.2d 342, 751 N.Y.S.2d 766 ). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v. Slatt, 64 N.Y.2d 966, 488 N.Y.S.2d 645, 477 N.E.2d 1099 ; Ayers v. Ayers, 92 A.D.3d at 624, 938 N.Y.S.2d 572 ). "A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning" ( Cohen–Davidson v. Davidson, 291 A.D.2d 474, 475, 740 N.Y.S.2d 68 ; see Matter of Scalabrini v. Scalabrini, 242 A.D.2d 725, 662 N.Y.S.2d 581 ). Here, the father failed to establish that there was a written document clearly setting forth a waiver or the terms of a modification (cf. Matter of Williams v. Chapman, 22 A.D.3d 1015, 803 N.Y.S.2d 260 ; Matter of O'Connor v. Curcio, 281 A.D.2d 100, 104, 724 N.Y.S.2d 171 ; Parmigiani v. Parmigiani, 250 A.D.2d 744, 745, 672 N.Y.S.2d 912 ).

We also agree with...