Cummins v. Lune

Appeal from an order of the Supreme Court (Gilpatric, J.), entered September 23, 2016 in Ulster County, which, among other things, partially denied plaintiff’s motion for pendente lite relief.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 2006 and have one child (born in 2001). In August 2015, the parties entered into a separation agreement regarding certain limited issues. Pursuant to their agreement, the husband remained in the marital residence and assumed the obligation to pay most of the monthly carrying charges associated with the residence while it was marketed for sale, after which the net proceeds would be evenly divided. In recognition of the husband’s sizeable obligation to pay the carrying charges, the agreement limited the amount that he would pay the wife “for basic child and spousal support” to a single, combined payment of $1,475 per month, plus 17% of any royalty income he earned, and these payments would continue “until the marital residence [was] sold.” The agreement further set forth that, notwithstanding any other language to the contrary, the wife was limited to the support payments that the agreement obligated the husband to pay.

In January 2016, the wife commenced this divorce action and, shortly thereafter, the marital residence was sold, the proceeds were equitably distributed in accordance with the agreement and the husband’s obligation to pay the carrying charges ceased. The parties disagreed, however, as to whether the terms of the separation agreement should nevertheless continue to limit the wife’s maintenance and child support. As

Where a separation agreement “is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the instrument” (Matter of Meccico v Meccico, 76 NY2d 822 , 824 [1990]; see Matter of Wasyliw v Smith, 18 AD3d 931 , 932-933 [2005]; Matter of Vizvary v Vizvary, 265 AD2d 697 , 698 [1999]). In assessing the parties’ intent, the agreement “should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases” (Consedine v Portville Cent. School Dist., 12 NY3d 286 , 293 [2009]; see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272 , 277 [2005]). Further, a reading of the agreement “should not render any portion meaningless” (Beal Sav. Bank v Sommer, 8 NY3d 318 , 324-325 [2007]; see Jenkins v Jenkins, 145 AD3d 1231 , 1234 [2016]).

Upon our review, we find that the agreement clearly and unambiguously reflects the parties’ intent to finally resolve the issue of custody and the equitable distribution of the marital residence. In finally resolving these two issues, the parties limited the monetary amount that the husband would pay to the wife for child support and maintenance during the finite period that he was residing in the marital home and paying a disproportionate share of the carrying charges. When viewed in the context of the entire agreement, it is readily apparent that the provision limiting the wife to the support payments that the agreement obligated the husband to pay was intended only as a limit to the monetary amount of the husband’s pay

We also agree with the wife that Supreme Court abused its discretion by denying that part of her motion seeking an award of $3,500 in counsel fees. It is undisputed that the wife’s status as the less monied spouse gives rise to a statutory rebuttable presumption that she is entitled to an award of counsel fees (see Domestic Relations Law § 237 [a]; Macaluso v Macaluso, 145 AD3d 1295 , 1297 [2016]; Teaney v Teaney, 138 AD3d 1301 , 1303 [2016]). Although Supreme Court recognized this rebuttable presumption, the court then went on to disregard it by denying the wife’s request for counsel fees without determining whether the husband had rebutted the statutory presumption. Nevertheless, given that the record has been fully developed on this issue, we exercise our authority to make the required findings (see Macaluso v Macaluso, 145 AD3d at 1298 ). After reviewing the record, including the affidavit from the wife’s counsel, the retainer agreement and the evidence indicating the significant income disparity between the parties, we find that the husband failed to rebut the presumption that the wife is entitled to an award of counsel fees in the amount of $3,500 (see Wald v Wald, 44 AD3d 848 , 850 [2007]; compare Valitutto v Valitutto, 137 AD3d 1526 , 1530 [2016]).

The parties’ remaining contentions have been reviewed and determined to be lacking in merit.

McCarthy, J.P., Devine, Clark and Mulvey, JJ., concur.

Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied that part of plaintiff’s motion seeking an award of temporary child support, temporary maintenance and counsel fees; motion granted to that extent, plaintiff is awarded $3,500 in counsel fees and matter remitted