Zombek v. Zombek

204 A.D.3d 961

164 N.Y.S.3d 875 (Mem)

Lee ZOMBEK, respondent,

v.Morris Eliezer ZOMBEK, appellant.

2020-00444

Index No. 22109/97

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

Submitted—March 15, 2022

April 20, 2022

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn, NY (Michael A. Coscia of counsel), for appellant.

A. Cohen Law Firm, P.C., Valley Stream, NY (Avinoam Cohen of counsel), for respondent.

COLLEEN D. DUFFY, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, WILLIAM G. FORD, JJ.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by a judgment entered July 27, 1999, the defendant appeals from an order of the Supreme Court, Queens County (William A. Viscovich, J.), dated September 27, 2019. The order, insofar as appealed from, after a hearing, granted the plaintiff's motion, inter alia, to hold the defendant in contempt and for an award of certain child support arrears to the extent of awarding her the sum of $256,000, plus $15,000 for attorneys’ fees.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The parties were married on November 18, 1988, and have four children together. The parties entered into a stipulation of settlement dated June 25, 1999 (hereinafter the stipulation), pursuant to which the plaintiff was awarded custody of the children. The stipulation was incorporated but not not merged into the judgment of divorce entered July 27, 1999 (hereinafter the judgment of divorce). In 2016, the plaintiff moved, inter alia, to hold the defendant in contempt and for an award of certain child support arrears, alleging that the defendant violated the terms of the stipulation and the judgment of divorce which required him to pay child support for certain educational, summer camp, extracurricular, and orthodontia expenses of the parties’ children, and seeking reimbursement for the amounts she paid for those expenses. In an order dated September 27, 2019, after a hearing, the Supreme Court, inter alia, granted the plaintiff's motion to the extent of awarding her the sum of $256,000, plus $15,000 for attorneys’ fees. The defendant appeals.

Pursuant to both the stipulation and the judgment of divorce with respect to child support, the defendant was responsible for paying for certain expenses of the four children, to wit, inter alia, yeshiva and summer camp tuition and extracurricular activities, and orthodontia expenses not covered by insurance.

The terms of the stipulation and the judgment of divorce provided that the defendant could pay the providers directly and negotiate those fees directly with the providers. The plaintiff alleged, among other things, that the defendant failed to make the payments for these expenses and that she made the payments when the defendant failed to do so.

The defendant's contention that the amount awarded did not constitute child support because child support is limited to basic child support and not so-called "add-ons," is without merit (see Cimons v. Cimons, 53 A.D.3d 125, 134–135, 861 N.Y.S.2d 88 ). Pursuant to the...