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Rosner v. Rosner

2016 NY Slip Op 06816

October 19, 2016

This is an appeal by Norman Rosner for a decision by the Supreme Court, decided on June 26, 2014. The order granted the motion of Christine Rosner, where she was to recover real estate taxes which she was paid on Norman’s behalf to recover Norman’s share of the children’s health insurance costs and unreimbursed medical expenses, direct the sale of the former residence and denied Norman’s cross motion. That motion was to recover damages for fraudulent conversion and dismissed his petition for Christine’s child support obligation and award child support arrears. Order affirmed.

The parties were married in 1991 and have two children. In 2008, Christine filed for divorce. The couple entered into a stipulation for settlement which was incorporated into the divorce judgment. In the stipulation, the parties agreed that Norman, the defendant, would have the right to continue to live in the family residence for 5 years, then the home would be sold. If the defendant was unable to pay the expenses associated with the residence, it would be sold. The plaintiff was required to pay all the expenses, except the mortgage, which was $3,000 per month, as well as $1,500 in child support. The parties were to share equally the health insurance and other medical expenses.

In 2013, the Plaintiff moved to recover real estate taxes that the plaintiff had paid on behalf of the defendant. The Plaintiff also sought to recover the defendant’s share of health insurance payments and unreimbursed medical expenses, as well as direct the sale of the residence. The defendant countersued, and seeks to recover damages for fraudulent conversion. The defendant also filed additional petitions for child support and child support payments that are in arrears.

The Supreme Court granted portions of the plaintiff’s motion to be reimbursed for real estate taxes, the defendant’s share of the children’s health insurance expenses and to direct the sale of the residence. The defendant’s cross-motion was denied.

The court said that “a stipulation of a settlement agreement which is incorporated but not merged into a judgment of divorce is a contract that is subject to interpretation” (Frances v Frances 140 AD 3d 1114, 1115; Matter of Tannenbaum v. Gilberg 134 AD3d 593). So, the court should interpret a stipulation of a settlement in accordance with its plain and ordinary meaning (Ackerman v Ackerman 82 AD 3d at 1020) “where an agreement is clear on its face, the intent of the parties must be taken from the four corners of the document.”

In this case, the plaintiff established that the defendant had not paid the real estate taxes as required in the agreement. Because of this, the court ordered that the residence is sold. Also, the court ordered that parts of the plaintiff’s motion where the plaintiff was to recover the defendant’s share of the children’s medical expenses. In keeping with the stipulation, the parties are to share in the health insurance costs equally.

The defendant’s remaining contentions were found to be without merit.

The only purpose of child support is to care for a child involved in a divorce. It is never to punish the paying parent. Child support is required in any divorce proceeding where a child is involved. This requirement cannot be discharged in bankruptcy, voluntarily waived by another parent.

In New York, a child receives child support until they are age 21 years, or until they are emancipated. The Child Support Standards Act (CSSA) controls the amount of support. This is calculated by a formula (% applied to the payor’s income).

Generally, CSSA applies to income up to 136 thousand dollars. The court can base it on other factors after that amount, such as financial ability, the lifestyle that the child is accustomed to, and any special needs.

Family law matter can be extremely emotional. It is important to speak with legal counsel to ensure that your rights are protected. Call Stephen Bilkis and Associates for guidance and a free consultation. We have office locations in Manhattan, the Bronx, Brooklyn, Staten Island, Queens, Nassau County, Suffolk County and Westchester County. Call today at 1-800-NYNYLAW.

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