“Actions speak louder than words,”1 suggests one attorney. Nonsense, words govern actions, retorts opposing counsel. But, when interpreting an ambiguous separation agreement, a party’s prior compliance with a disputed payment obligation colors the Court’s judgment and dictates that the obligor, having partially performed the payment requirement, must continue to perform under the agreement unless the absence of ambiguity dictates otherwise. The facts in this matter are sketched in an earlier opinion of this Court in which the Court denied the former wife’s (“the wife”) motion for summary judgment to require her former husband (“the husband”) to finance the cost of a new vehicle after the wife’s vehicle exceeded 75,000 driven miles. The Court will not recite all the factors that led the Court to deny summary judgment. However, in face of contrary factual issues and a conclusion that the couple’s separation agreement was ambiguous, the Court held a hearing from which this decision flows. In their separation agreement, signed in 2006, this couple included this language: The husband agrees to pay the wife maintenance in the amount of $55,000 per year, together with a CPI increase annually, to be paid in quarterly installments commencing upon signing of this agreement by the parties, until the death of the wife. In addition the husband shall pay and replace the wife’s vehicle when ever the vehicle mileage exceeds 75,000 with a vehicle that is of a similar type in price range to the vehicle that the wife currently owns, two wit: 2002 MCX Acura. The husband, both at the time of the motion for summary judgment and now contends that he is not obligated to replace the wife’s vehicle every time the vehicle exceeds 75,000 and further has contended that he only had an obligation — one time — to replace the vehicle. The facts at the hearing — stipulated into evidence — establish that the husband bought his wife three cars when her then current vehicle hit the 75,000 limit. The purchases, which occurred in 2007, 2011 and 2014, were supervised by the husband, who purchased the vehicles at the request of his wife. Only in the face of the most recent request did the husband demur, claiming that his obligations under the agreement were fulfilled when he bought his wife the first vehicle in 2007. Based on this evidence, the wife argues that the husband, having conceded that he had previously replaced the wife’s vehicle when it hit the 75,000 mark three times before, cannot now seek to evade his own interpretation of the agreement by declining to buy another vehicle. In its decision on the motion for summary judgment, this Court speculated that if the wife were to prove the facts regarding the purchases, then the husband’s prior conduct could be a substantial factor in interpreting the couple’s intent as to whether the vehicle replacement clause was a continuing obligation. The Court cited Town of Pelham v. City of Mt. Vernon, 304 NY 15, 23 (1952) (“There is no surer way to find out what parties meant, than to see what they have done.”) (quoting Brooklyn Life Ins. Co. of NY v. Dutcher, 95 U.S. 269, 273 (1877)); Brown Bros. Elec. Contractors, Inc. v. Beam Constr. Corp., 41 NY2d 397, 399-400 (1977) (in determining whether parties agreed to contract terms, courts must look to “the intent of the parties as gathered by their expressed words and deeds”). The wife’s counsel, in her summation, fires these same cases back at the Court as guidance in resolving this matter. Having cited them as a cause for denying summary judgment, this Court must now cite them to support judgment in favor of the wife on the vehicle replacement requirement. The husband’s conduct was unequivocal: he bought the wife a new vehicle immediately after the agreement was signed. In a curious move, the husband did not buy an exact replacement vehicle: he bought instead a lower priced vehicle. However, in apparent recognition of his replacement obligation, the husband paid his ex-wife the difference between the value of the new car and the “monetary value” of an exact replacement vehicle. This conduct evidences that the husband knew that he had an obligation to replace the older vehicle with a another vehicle. There is no way to describe the husband’s subsequent purchase of two other replacement vehicles other than those actions were consistent with the understanding — his understanding — that the agreement required periodic vehicle replacements. The husband offers a convoluted justification for the additional payment on the first replacement vehicle. Relying on an email, the husband argues that the wife, in an email shortly after purchase of the first vehicle, referred only to a single “car of similar monetary value.” The husband argues that this email evinces the wife’s conclusion that the agreement only required a single vehicle replacement. This Court declines to follow that logic: the wife’s 2007 email refers only to a single “car” but there is nothing in the email that would relieve the husband of any future obligation. The wife does refer to “your [the husband's] legal obligation” but there is no language in the email that suggests the wife was referring to or waiving any future replacement obligation. As this Court noted in its earlier decision, the agreement required that any modification of any obligation under the agreement could only be made in writing. There is no such writing here. This Court also notes that the location of this paragraph in the agreement supports the Court’s determination. The language is included in the section detailing maintenance to be paid by the husband to his wife. The maintenance by its express terms is non-durational. The very next sentence begins with the phrase “in addition.” The inclusion of this language acts a connector between the cash maintenance — which is non-durational — and the requirement to purchase a vehicle. The phrase “in addition” follows the words “until the death of the wife.” The fact that the car replacement language immediately follows the details of non-durational maintenance strongly supports the Court’s interpretation. In addition, while not dispositive in any sense, this Court notes that it is undisputed that the husband, through his accountant, deducted the value of the replacement vehicle in each year in which it was replaced as tax-deducible maintenance. The husband, through his counsel, also argues that his passive nature — when contrasted with what the husband alleges is the demanding nature of his wife — led him to avoid confrontation with his ex-spouse. This Court can hardly relieve a contractual obligation under a theory that a litigant’s nature somehow caused him to concede a contractual obligation rather than contest it. The husband’s passive nature may explain his reluctance to challenge his wife after he signed the agreement and, perhaps, it may account for the presence of the contractual requirement that he replace the vehicle periodically. In that regard, the Court need not speculate which is which: the words of the agreement suffice to mandate that the husband replace the vehicle when it exceeds 75,000 miles.2 For these reasons, the Court holds that the husband must replace the wife’s current vehicle with a similar type vehicle in price range to the vehicle that the wife owned at the time of the signing of the agreement, two wit: a 2002 MCX Acura. The agreement does not describe what vehicle should be purchased and nowhere does it suggest that the husband is obligated to purchase a new vehicle. The agreement simply states that the vehicle must be a similar type in the price range of the wife’s then current vehicle, a four-year-old 2020 MCX Acura. Based on that language, the couple should determine the value of that vehicle on the date that the agreement was signed and the husband will be required to purchase a vehicle of a similar value going forward. The Court notes that there is no requirement in the agreement that the husband purchase a new vehicle: he simply has to purchase a vehicle with the same value that the 2002 ACURA MCX had on the date of the agreement. In that regard, the wife argues that the husband’s purchase of new vehicles at periodic intervals is evidence that the husband interpreted the agreement to require purchase of new vehicles. It is undisputed that the husband did purchase the wife new vehicles in prior years. However, the argument that the husband’s conduct in purchasing new vehicles binds him to purchase a new vehicle each time runs smack long into the more exacting language in this portion of the agreement. The agreement never uses the word “new” and only describes the value as “within a similar price range” as the four-year-old Acura. There is nothing in the agreement that references a new replacement: just the opposite, the agreement refers only to the value of the four-year-old Acura. While this Court can consider the husband’s conduct in resolving an ambiguity of whether the obligation is non-durational, this Court declines to use the conduct to re-write the agreement and create an additional financial obligation where the language specifically contradicts that obligation. The Court’s fealty to the language of the party’s agreement also requires a different analysis of the “all costs associated” language in another portion of their agreement. The agreement reads: The husband owns a 2006 Infiniti M 35 and the wife owns a 2002 MDX Acura. Husband will be responsible for any and all costs associated with the respective vehicles, including, but not limited to insurance and repairs associated there with. In the use of this language, the couple gave no indication that the requirement to finance those costs would extend beyond the specific vehicles mentioned in that portion of the agreement. There is simply no requirement that the husband pay for any expenses, other than those associated with the wife’s then current vehicle. The language makes no reference to the prior paragraph concerning the enduring obligation for vehicle replacement. Under those circumstances and because the language of this section only references two specific vehicles and contains no explicit future obligation, the Court declines to find any contractual obligation for the husband to pay “the costs associated” with any vehicle purchased under this agreement. The Court notes the wife argues that the husband, by paying for these costs previously, is now precluded from arguing that his obligation never existed and that his actions, even in this instance, speak louder that the words of the agreement. That argument fails here because the words alone dictate the result: there is simply no language, in this stand alone two-sentence paragraph, that gives rise to any obligation beyond the specific vehicles referenced. Finally, the wife requests attorneys fees for this application to enforce the terms of the agreement. The fees are permitted under the Domestic Relations Law. The wife has prevailed on her claims under the vehicle replacement clause. This Court requests that the wife’s counsel forward a fee affidavit and the Court will review any objections and then, if appropriate, award appropriate fees. For these reasons, the Court holds that the husband must replace the wife’s vehicle when it attains 75,000 miles with a vehicle in a similar type and price range to 2020 Acura referenced in their agreement. The claim that the husband finance “costs associated with” any new vehicle is denied. SUBMIT ORDER ON NOTICE. 22NYCRR 202.48 Dated: October 27, 2020
