DECISION AND ORDER(Motion Sequence #22 & 23) In this post-judgment matrimonial proceeding, the defendant mother has moved by Order to Show Cause dated April 13, 2018 (Mot. Seq. #22), seeking an Order holding the plaintiff father in contempt for failure to comply with the Judgment of Divorce which was filed and entered on March 13, 2018. This Court issued an Interim Order dated April 20, 2018, with respect to the aspects of the motion that were time sensitive, after the parties appeared with counsel and were heard. The remaining issues raised in the motion are now addressed in this Decision and Order, having been briefed by the parties. The plaintiff father Cross-moves by Notice of Cross-motion dated May 24, 2018 (Mot. Seq. #23), for an order granting resettlement of the Judgment of Divorce to be consistent with the stipulation of settlement placed on the record on December 17, 2017, and granting an award of counsel fees to the plaintiff on the motion. The defendant opposes the cross-motion. The Court now finds as follows.Defendant’s Order to Show Cause1. Child Support and ExpensesThe mother seeks claimed arrears totaling $2,404.60, representing arrears of $1,240.28 for child support and child care expenses, $768 for the father’s share of educational and medical add-on expenses, and $376.32 for the children’s medical coverage. The mother contends that these amounts are due under the Judgment of Divorce, and that pursuant to the parties’ stipulation placed on the record on December 17, 2017, these payments were to commence as of January 1, 2018.The father opposes the motion, contending that the Judgment of Divorce provides that the payments are to commence as of March 1, 2018, and that there are no arrears, since the increased amounts were not due in the months of January and February.The mother states that the father paid a total of $3,512.64 in January, $3,867.84 in February and $3,682.24 in March. The Judgment of Divorce filed and entered on March 13, 2018, states, in relevant part that: “the Plaintiff [father] shall pay to the Defendant [mother] the sum of $3,500.00 per month for child support commencing on March 1, 2018….” Since the terms of the Judgment of Divorce as to child support being payable in the amount of $3,500 per month, plus add-on expenses, did not take effect until March 1, 2018, it has not been demonstrated that the father is in arrears as to the amounts due for January and February. The stipulation placed on the record on December 17, 2017, was not so-ordered by the Court at that time on the record, and the Judgment of Divorce indicated that provision was effective as of March 1, 2018 (see, e.g., Pretterhofer v. Pretterhofer, 37 AD3d 446 (2d Dept 2007)). The mother’s motion to hold the father in contempt for failure to pay child support and educational and medical add-on arrears for January and February is thus denied.2. Summer Camp — Decision-making and Payment of FeesThe mother raises two issues with regard to summer camp for the children: decision-making and payment of costs for camp. Turning first to decision-making, the mother asserts that the father has violated this Court’s custody order. She is to have final decision-making following consultation with him, but he has taken the position that he intends to take the summer off and do “enrichment” activities with the children, including horseback riding, rather than send them to camp on the weeks he is with them. He also communicated to her that the camp she proposed was too costly, and that the children should instead attend the town camp when they are with her.The father contends that it is the mother who failed to engage in good faith communications regarding the choice of summer programs for the children, and that she simply dictates her decision without consultation with him, as is evidenced by their emails on this issue (annexed as Plaintiff’s Exh. F).The Attorney for the Children takes the position that the Orders of the Court must be complied with, however, he takes no position on the issue of the father’s alleged contempt.It is clear that according to the Judgment of Divorce, the Custody Decision and Order dated December 20, 2017, and the Order for Holiday and Vacation Access dated January 26, 2018, (both orders incorporated but not merged in the Judgment of Divorce), it is the mother who has final decision-making authority with respect to the parties’ two children L. and E., following consultation with the father1. The parties had email exchanges, annexed to the motion papers as Defendant’s Exh. F through J, and Plaintiff’s Exh. F, in which they discussed the issue of summer camp in April 2018, following the entry of the Judgment of Divorce on March 13, 2018.The parties have an alternating week schedule over the summer as per the Order for Holiday and Vacation Access dated January 26, 2018. That Order further states:“Each parent shall have the responsibility to regularly take the Children, barring illness, to any summer program and/or camp in which they may be enrolled, pursuant to the decision-making parameters more fully set forth in the Court’s Decision and Order of Custody dated December 20, 2017.”The position that the father has taken that he may engage the children in activities of his own choosing on the alternate weeks they are residing with him over the summer is in direct contravention of the Court’s Order as noted above. It is quite disturbing to the Court that the father is flouting the clear directive of the Court that the mother has the final decision-making authority for the children. In this instance, the mother was entitled to reject the father’s proposal for the summer, which would have had them attend camp only on the alternate weeks they were with her. The language quoted above was specifically included in the Order for Holiday and Vacation Access because the father has engaged in similar behavior in the past, keeping them home from camp programs in which they were enrolled to engage in activities he deemed more beneficial.Although the father characterized his response to the mother’s proposed camp option as “constructive and thoughtful,” in reality, the position he has taken in stating he was not going to send the children to camp on the alternate weeks they are residing with him violates the clear language of the Order for Holiday and Vacation access to the effect that “[e]ach parent shall have the responsibility to regularly take the children, barring illness, to any summer program and/or camp in which they may be enrolled.” It is the mother’s opinion that the children should have a consistent and continuous camp program and not drop in and out week to week.Turning next to the issue of costs for camp, the father argues that the mother does not have the ability to obligate him financially for the cost of camp beyond that of their usual practice2. He sought to have the children attend the town camp at a cost of $975, rather than the Future Stars Camp at a cost of $5,280. He also wanted them to engage in other enrichment activities with him on his weeks with them.The Judgment of Divorce, the Decision and Order of Custody dated December 20, 2017, and the Order for Holiday and Vacation Access dated January 26, 2018, all provide that the mother is to have final decision-making as to the choice of camp, and none of these documents contain any provision that places a specific limit on the cost of camp, or states what their past practice has been.The parties’ original stipulation on the record did not mention camp specifically, but stated that “all prospective statutory add-ons shall be subject to the parties’ consent, such consent not to be unreasonably withheld.” Since the mother is working over the summer, and the children are ages 7 and 10, camp is a child care expense, and thus a mandatory statutory add-on (DRL §240 (1-b)(c)(4); Fiore v. Fiore, 150 AD3d 1205, 1207 (2d Dept 2017) [child's summer camp expenses constituted the functional equivalent of day care expenses]). In accordance with the terms of both the stipulation and the Judgment, statutory add-ons are to be paid 64 percent by the father and 36 percent by the mother.The question then becomes whether the father’s withholding of his consent for the children to attend the Future Stars camp was reasonable or not. The Court finds that given the parties’ incomes and all the circumstances of this case, that decision on his part must be considered unreasonable. In 2017, the father’s income was approximately $230,000 and the mother’s was approximately $109,000. He asserts he cannot afford the camp, but has paid his counsel over $860,000 in fees in this litigation, not including any fees paid in connection with the appeal he has filed.In this Court’s view, the father is attempting to withhold his consent to effectively thwart the mother’s final decision-making on the issue of camp. In the parties’ email exchange, one suggestion he made was that the children attend Twin Lakes horseback riding camp, which costs $725 per child per week, totaling more for the two children than the camp the mother proposed3. The cost range of Future Stars camp at $8,500 for two children, is within that of other camps in Westchester and camps the children have attended during some of the past years.As time was of the essence in signing the children up for a summer program due to deadlines for enrollment, this Court directed that the mother make the decision as to the summer camp program the children will attend, and the Court would later allocate the expense depending on which party prevailed on this issue. Accordingly, the children are attending Future Stars camp. While, going forward, the parties shall engage a parenting coordinator to assist them in making such decisions, for this year, the Court now confirms the mother’s choice of camp. The parties shall split the cost of such program in the applicable percentages that apply to add-ons in this case, 64 percent to the father and 36 percent to the mother.As stated in the Order for Holiday and Vacation Access dated January 26, 2018, each parent shall have the responsibility to regularly take the children, barring illness, to any summer program and/or camp in which they may be enrolled. Any failure to do so will be viewed as a contempt of the Court’s Order.Plaintiff’s Cross-motionThe plaintiff father seeks resettlement or modification of the Judgment of Divorce, contending that it is inconsistent with the terms of the stipulation of settlement placed on the record on December 17, 2017. The defendant mother opposes the motion, arguing that the terms he claims were agreed upon in conference were never agreed upon, and were not referenced in the stipulation placed on the record.In support of his contention that the Judgment of Divorce should be resettled or modified, specifically, the father argues that based upon his counsel’s discussion in conferences with the Court’s law secretary and opposing counsel, he agreed to pay $3,500 per month in child support with the understanding that he was to receive a credit of $500 per month against child support, to equalize both the parties’ credit card debt, and their retirement accounts. He points to various draft agreements circulated with opposing counsel to support his claim that this is what the parties’ intended.The defendant mother responds that the parties agreement was to allow the father a credit against child support of $500 per month to equalize the parties’ credit card debt, and that it was never agreed that he would receive this credit to equalize retirement accounts. She argues that there is no basis in the language of the stipulation for the father’s interpretation that a retirement differential should be deducted from child support. She also contends that the motion is procedurally improper, since resettlement is not applicable to effect substantive changes in a Judgment, and alternatively, if it is deemed a motion for modification or reargument, it is untimely.This Court conducted a number of conferences in this matter with the parties’ counsel, as did the Court’s law secretary, in the hope of assisting them in reaching a settlement in this long-pending litigation. During the conferences held, many different proposals were raised, at various points, in an effort to reach a settlement. As the parties themselves were not present during court conferences, any proposals raised were always subject to counsel’s speaking with their clients. Thus, whether or not any particular settlement terms were discussed or not is of no moment, as the father’s counsel placed the parties’ final stipulation on the record, following each counsel’s discussion with their clients, which is the language that remains binding upon them as part of their so-ordered stipulation of settlement, to which they agreed in court.The language of the stipulation placed on the record on December 17, 2017, indicates that the father is to pay basic child support for the parties’ two children in the monthly amount of $3,500. The stipulation further states, in relevant part:“Parties will submit all relevant retirement information to pension actuaries, specifically Robert Guarnera, to calculate the net credits due to plaintiff pursuant to the Majauskas formula….All rights and defenses are reserved with respect to this issue. If it cannot be resolved, the parties reserve the right to come back to court for determination. The parties will determine the net credit due to a party for pre-commencement credit card debt. All rights and defenses are reserved with respect to this issue. If it cannot be resolved, the parties reserve the right to come back to court for determination. Notwithstanding the foregoing, upon determining the net credit due plaintiff, if any, it shall be credited against his basic child support payments to the defendant at the rate of $500 per month for so long as necessary to exhaust the credit due to plaintiff. By way of example, if the net credit due to plaintiff is $5,000, he would get a $500 credit for ten months….”The father argues that based upon the above language, he is entitled to a $500 monthly reduction of child support for equalization of both marital credit card debt and retirement accounts, while the mother maintains that the language indicates he is entitled to a reduction in child support solely to equalize credit card debt.“Stipulations and separation agreements that provide for an unallocated child support payment may only be reduced or terminated on conditions that are expressly provided for in the stipulation or agreement” (Katz v. Dotan, 95 AD3d 1328, 1329 (2d Dept 2012); Winokur v. Winokur, 31 AD3d 653 (2d Dept 2006)). Further, “[t]erms or conditions for reduction or termination of support payments, relating to the status of the children, should not be implied or deemed to exist” (Winokur v. Winokur, supra at 654).This Court will not read into the parties’ stipulation a reduction of child support of $500 per month to equalize the parties’ retirement accounts, since a reduction of child support for this purpose is not expressly provided for in the agreement. It is simply not clearly expressed in the language of the stipulation whether the reduction in child support is to apply to equalization of retirement accounts, and the Court will therefore not read that element into the agreement (see Keller-Goldman v. Goldman, 149 AD3d 422, 424 (2d Dept 2017)). The Judgment of Divorce that was filed and entered by this Court, following submission of a Judgment and Counter-Judgment by the parties, reflects the Court’s conclusion that the terms the father seeks to impose as to reduction of child support to equalize retirement accounts, are not expressly provided for in the stipulation. Such a reduction in support payments, relating to the status of the children, will not be implied or deemed to exist by this Court.Moreover, it is of note that a reduction in child support to compensate the father for retirement assets would not insure to the children’s immediate benefit. Based upon the actual numbers submitted as to the present value of the parties’ retirement assets (see Notice of Cross-motion, Exh. L); this would result in a reduction of child support of $500 per month for at least 8 years.Accordingly, the father’s cross-motion for resettlement or modification of the Judgment of Divorce is denied. Both parties’ applications for counsel fees on these motions are denied.This constitutes the Order of this Court.The Court considered the following papers on these motions: Def. Order to Show Cause dated April 13, 2018; Affirmation in support; Def. Affidavit in support; Exh. A-L. Notice of Cross-motion dated May 24, 2018; Plaintiff’s Affidavit in opposition; Affirmation in opposition to the Order to Show Cause and in support of the cross-motion; Exh. A-N. Def. Affirmation in Reply and Opposition dated May 30, 2018; Exh. M. Plaintiff’s Attorney Affirmation dated June 6, 2018. Affirmation of the Attorney for the Children, Eric Fayer, Esq. dated May 3, 2018.Dated: July 13, 2018White Plains, New York
