Kirk v. Kirk

207 A.D.3d 708

174 N.Y.S.3d 381

Robert P. KIRK, respondent,

v.Kathleen M. KIRK, appellant.

2019–06136, 2019–09379

Index No. 202166/09

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

Submitted—March 7, 2022

July 27, 2022

John R. Lewis, Jr., Esq., P.C., Farmingdale, NY, for appellant.

Law Offices of Robert P. Kirk, Jr., P.C., Farmingdale, NY, for respondent.

VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LINDA CHRISTOPHER, WILLIAM G. FORD, JJ.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment dated January 18, 2011, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Rademaker, J.), dated April 16, 2019, and (2) an order of the same court dated July 1, 2019. The order dated April 16, 2019, denied the defendant's motion, in effect, to enforce certain provisions of the parties’ separation agreement dated January 9, 2007, as modified by an agreement between the parties dated December 14, 2010. The order dated July 1, 2019, denied the defendant's motion for leave to reargue and renew her prior motion.

ORDERED that the appeal from so much of the order dated July 1, 2019, as denied that branch of the defendant's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated April 16, 2019, is modified, on the law and the facts, by deleting the provision thereof denying those branches of the defendant's motion which were, in effect, to enforce those provisions of the parties’ separation agreement dated January 9, 2007, as modified by an agreement between the parties dated December 14, 2010, requiring the plaintiff to pay outstanding real property taxes and to reimburse the defendant for expenses paid in connection with the utilities, gardening, maintenance, and repairs related to the former marital residence, and for an award of attorneys’ fees, costs, and disbursements in accordance with the separation agreement, and substituting therefor a provision granting those branches of the motion; as so modified, the order dated April 16, 2019, is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith, including an evidentiary hearing to fix the amounts owed the defendant, including reasonable attorneys’ fees; and it is further,

ORDERED that the appeal from so much of the order dated July 1, 2019, as denied that branch of the defendant's motion which was for leave to renew those branches of the defendant's prior motion which were, in effect, to enforce those provisions of the parties’ separation agreement dated January 9, 2007, as modified by an agreement between the parties dated December 14, 2010, requiring the plaintiff to pay outstanding real property taxes and to reimburse the defendant for expenses paid in connection with the utilities, gardening, maintenance, and repairs related to the former marital residence, and for an award of attorneys’ fees, costs, and disbursements in accordance with the separation agreement, is dismissed as academic in light of our determination on the appeal from the order dated April 16, 2019; and it is further,

ORDERED that the order dated July 1, 2019, is affirmed insofar as reviewed; and it is further,

ORDERED that the defendant is awarded one bill of costs.

The parties were married on September 16, 1984, and have three children. On January 9, 2007, the parties entered into a written separation agreement which provided, inter alia, that "[u]ntil the closing of title," the plaintiff would be responsible for all expenses for the former marital residence, including real property taxes, utilities, gardening, maintenance, and repairs. The separation agreement provided that the plaintiff would have exclusive possession of the former marital residence, where he would reside with the three unemancipated children. The separation agreement specified that the defendant's income was $0, and that her pro rata share of basic child support was 0%. On December 14, 2010, the parties entered into a modification of the separation agreement (hereinafter the modification agreement), wherein it was agreed that the defendant would have exclusive use and occupancy of the former marital residence until the youngest child reached 21 years of age or became emancipated, at which time the former marital residence would be placed on the market for sale and the defendant given a right of first refusal to purchase the plaintiff's interest in the former marital residence. The parties were divorced pursuant to a judgment dated January 18, 2011. The separation agreement, as modified, was incorporated but not merged into the judgment of divorce.

Thereafter, by correspondence dated May 31, 2018, the defendant through her counsel demanded that the plaintiff cure his alleged default in failing to pay the real property taxes, utilities, gardening, maintenance, and repairs for the former marital residence, as well as child support arrears. By correspondence dated October 31, 2018, the plaintiff demanded that the former marital residence be listed for sale as the youngest child had reached 21 years of age. In subsequent correspondence, the plaintiff advised that should the former marital residence not be sold and/or his interest bought out, the defendant would be responsible for any loss of equity that he might sustain.

The defendant subsequently moved, in effect, to enforce the provisions of the separation agreement, as modified, requiring the plaintiff to pay the outstanding real property taxes, to reimburse the defendant for expenses paid in connection with the utilities, gardening, maintenance, and repairs related to the former marital residence, and to pay child support arrears. The defendant also sought attorneys’ fees, costs, and disbursements in accordance with the separation agreement, as modified. The plaintiff opposed the motion. By order dated April 16, 2019, the Supreme Court denied the defendant's motion. Thereafter, the defendant moved for leave to renew and reargue her prior motion. By order dated July 1, 2019, the court denied reargument and renewal. The defendant appeals.

"A separation agreement or stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract, the terms of which are binding on the parties," and are subject to the principles of contract interpretation ( Matter of Moss v. Moss, 91 A.D.3d 783, 783, 937 N.Y.S.2d 270 ; see Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5, 743 N.Y.S.2d 773, 770 N.E.2d 561 ; Van de Walle v. Van de Walle, 200 A.D.3d 1095, 1098, 161 N.Y.S.3d 221 ). A court should interpret a contract such as a separation agreement in accordance with its plain and ordinary meaning (see Colucci v. Colucci, 54 A.D.3d 710, 712, 864 N.Y.S.2d 67 ), and "should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized" ( Matter of Schiano v. Hirsch, 22 A.D.3d 502, 502, 803 N.Y.S.2d 643 ; see Shkreli v. Shkreli, 186 A.D.3d 638, 639, 129 N.Y.S.3d 177 ). "Agreements are construed in accordance with the parties’ intent, and the best evidence of intent is the written instrument" ( Van de Walle v. Van de Walle, 200 A.D.3d at 1098, 161 N.Y.S.3d 221 ). "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...