A.S., Plaintiff, v. S.S., Defendant. (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 006) 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT.

Background

In these motions, plaintiff moves to confirm in part and reject in part, and defendant cross-moves to confirm in part and disaffirm in part, the Report and Recommendation of Special Referee Elizabeth Shamahs dated April 15, 2022, which was entered in the Office of the New York County Clerk on April 20, 2022. The Referee's Report follows a post-divorce judgment hearing regarding potential arrears owed by Defendant to Plaintiff stemming from alleged defaults to their 2010 Settlement Agreement.

Plaintiff and Defendant were married on August 28, 1999, and were divorced in 2010. The parties have two children, D.S. born in 2001, and P.S., born in 2005. A Settlement Agreement was agreed to by the parties on February 19, 2010, and incorporated into the parties' Final Judgment of Divorce on May 5, 2010.

Among other things, the parties' Agreement provides that Defendant shall pay 100% of each child's tutoring costs, 100% of college costs including prep courses, 100% of extracurricular activities, 100% of summer camp, 100% of the children's unreimbursed medical expenses, 100% of the costs of a full-time babysitter, 50% of the costs of a full-time housekeeper/weekend helper, and 50% of a part-time weekday babysitter.

In 2019, Plaintiff filed a motion seeking to find Defendant in default of the agreement, and to enforce the agreement by directing payment of, inter alia, various medical bills, extracurricular activities, college prep courses, weekend housekeeper, and requesting an award of counsel fees. Defendant filed a cross-motion requesting, inter alia, an award of counsel fees.

Plaintiff now moves for an award of no less than $146,236.46, pursuant to the recommendation in the Referee's Report. Reimbursements included in the recommended award amount are as follows: $111,474.20 for the weekend housekeeper C's salary and 2020 taxes, $1,033.33 for a November 2020 allergy treatment trip for the parties' daughter, $6,873.43 for educational expenses for the children, $13,200.00 for Dr. R's treatment of the children, $2,375.00 for Dr. M's treatment of one of the children, $6,000.00 for Dr. L's evaluation, $5,286.28 for medication for the children, and $350.00 for a dermatology appointment for one of the children.

Notably, the Referee's Report and Recommendation granted some of Plaintiff's reimbursement requests and denied others. In particular, the Report and Recommendation granted Plaintiff $146,236.38 from the Defendant. This amount is comprised of costs of the children's tutoring, ACT programs, educational consultants, Dr. L's evaluation, medication for each of the children, the children's doctor's appointments, a portion of Dr. R's bills, Dr. M's bills, and the salary and taxes for housekeeper C. However, the Referee denied Plaintiff's request that Defendant be charged with P.S.'s tennis lessons, D.S.'s Teen Tour, P.S.'s appointment with Dr. W, D.S.'s [hospital] blood work, Dr. S's services, and R's salary and taxes. The Referee also denied portions of the costs for the children's medication and treatments by Dr. L, Dr. R, and Dr. M.

In her motion, Plaintiff seeks additional reimbursement of $7,377.77 for four other allergy treatment trips in 2021 and 2022. Plaintiff also seeks to modify the recommended award for the November 2020 Allergy Treatment Trip, enhancing it to 50% from the 33% recommended by the Referee. Plaintiff also moves for modification of the Referee Report to include an order directing Defendant to pay $123,400.10 for Plaintiff's counsel fees, $129,233.54 in arrears for the babysitter/housekeeper R's salary and taxes from June 1, 2019 through July 16, 2021, and $55,085.29 for R's salary and taxes from July 16, 2021 through May 2022.

Defendant moves to disaffirm portions of the Report and Recommendation, including the recommendation that Defendant owes arrears for 50% of C's salary and taxes. In the alternative, Defendant seeks a correction to the Recommendation that incorrectly states that Defendant pay 100% of C's taxes for 2020. Specifically, the Referee stated that Defendant owes 50% of C's salary and taxes, but the amount listed in the Report is $13,559.00, which is 100% of the 2020 taxes. Defendant also seeks a disaffirmation of the Referee's recommendation that Defendant pay $13,200.00 for treatment by Dr. R through December 13, 2013. Finally, Defendant seeks disaffirmation of the Report to the extent it denied him an award of counsel fees.

Discussion

The Court shall confirm a report by a Special Referee when the report is supported by the record (Bubul v. Port Parties, Ltd. 83 AD3d 517 [1st Dept 2011]). The Referee's responsibility is to determine what the issues are and "resolve any conflicting testimony and matters of credibility" (Rezzadeh v. Lucas, 253 AD2d 698, 698 [1st Dept 1998]). The Court will defer greatly to the findings of the referee as long as the referee's report is supported by the record (Freedman v. Freedman, 211 AD2d 580, 580 [1st Dept 1995]). Further, stipulations in a matrimonial action are enforceable and are subject to the principles of contract law and interpretation (see Meccio v Meccio, 76NY2d 822 [1990]; Rainbow v Swisher, 72 NY2d 106 [1988]).

Under the Civil Practice Law and Rules, CPLR § 4403, a judge may confirm or reject, in whole or in part, the referee's report in a motion to confirm. This Court has reviewed the Referee's Report and Recommendation and now affirms the Report with one exception which is disaffirmed as discussed more below.

Tutoring and College-Related Expenses

The Referee recommends that Defendant should be chargeable with the tutoring costs of $311.87 based on their settlement agreement that states that Defendant is to pay 100% of tutoring expenses provided he participates in the discussion and selection of the tutor. The Parties conceded that Defendant was not consulted in advance. However, the Referee noted that Defendant was in the habit of paying for tutoring expenses for the children without giving prior consent when presented with the bills. The court defers to the Referee's finding that Defendant owes Plaintiff for tutoring costs of $311.87.

The Referee further recommends that Defendant be chargeable with college-related expenses of $6,205.78 based on the settlement agreement states that Defendant shall pay 100% of the cost of each child's private undergraduate related expenses. Defendant also expressly agreed in his Notice of Cross-Motion and Post Trial Brief to pay $5,850.00 for H.K., the educational consultant, and $355.78 for the ACT programs. Defendant admitted that he did receive an email from Plaintiff requesting his input regarding an educational consultant and he did not respond to the email. The court defers to the Referee's finding that Defendant owes Plaintiff $6,205.78 for college related expenses.

The Referee recommends that Defendant should be chargeable with $6,000.00 in fees for Dr. L's evaluation of D.S. Plaintiff presented evidence that she attempted to consult Defendant on the matter and Defendant did not reasonably deny consent. The Referee noted that Defendant tried to barter consent for the evaluation for an allergy treatment for P.S. Plaintiff also requested additional reimbursement but did not present any evidence that she notified Defendant of an additional fee amount of $2,400.00 prior to the commencement of the proceeding. The Referee's finding that these costs were in fact educational in nature and that Defendant did not have a valid reason for withholding his consent are supported by the record. The Court defers to the Referee's finding that Defendant owes Plaintiff $6,000.00 in reimbursement for Dr. L's fees.

Extracurricular Activities

The Referee recommends that Defendant should not be responsible for P.S.' tennis lesson in the amount of $150.00. While Defendant has consented and paid for tennis lessons in the past, Plaintiff failed to notify Defendant of this expense prior to the filing of her Motion. The Court defers to the Referee's finding that Defendant is not responsible for this expense for a tennis lesson.

Teen Tour

The Referee recommends that Defendant shall not be responsible for the cost of D.S.' Teen Tour in the amount of $8,506.00. The Referee notes that the teen tour would fall under the summer activities section of the parties' agreement where Defendant is to pay 100% of the costs for any summer camp upon consent. However, Defendant continuously denied consent to the Teen Tour as he reasonably thought it was not ideal for D.S. as she was 15 years old at the time and self-medicating with alcohol and marijuana. The Court also agrees that the Teen Tour does not constitute a camp. The Court therefore affirms the Referee's finding that Defendant is not responsible for the expense of the Teen Tour.

Medical Expenses

Plaintiff sought reimbursement of $8,208.02 for medication for D.S. prescribed from 2014 through 2018 and $1,068.02 for medication prescribed from 2016 through 2018. The Referee notes in her report that regarding prescription drug expenses, advance consultation and written consent is required. Defendant consented to D.S. receiving medications including, Zoloft, Sertraline, Bupropion, L-Methyfolate Forte, Methylphenidate, Fluoxetine, Wellbutrin, and Trileptal, for her mental health issues but was strictly against the Adderall program. The Referee recommends Defendant be charged with $5,096.28 for the child's prescribed medication used to treat her mental health issues only. The court confirms the Referee's finding that Defendant owes Plaintiff $5,096.28 in reimbursement for prescribed medication for mental health issues.

The Referee next recommends that Defendant not be charged for the medications including Sololyn, Claravis, Cephalexin, and Mupirocin used to treat D.S' skin issues. The Referee noted that in August 2016 Defendant's attorney notified Plaintiff's attorney that Defendant would no longer pay for any medication without prior consultation and written consent. Defendant was not consulted prior on the specific medications. The Court agrees with the Referee's finding that Defendant does not owe Plaintiff reimbursement for the medications including Sololyn, Claravis, Cephalexin, and Mupirocin.

Plaintiff presented invoices for prescribed medication for P.S. many of which were illegible to the Referee and thus were not considered. The Referee recommends that Defendant be charged with $190.00 for EpiPens and inhalers as listed on the invoice from 04/09/2016 to 1/26/2017 given that both parties have acknowledged P.S' ongoing severe food allergies. The Court also agrees with the Referee's finding that Defendant owes Plaintiff $190.00 in reimbursement for prescribed EpiPens and inhalers.

The Referee recommends that Defendant be charged for the routine dermatology appointment with Dr. W for D.S. The Referee notes that although Defendant did not receive the invoice for this appointment because it was sent to his former assistant, Defendant regularly would pay these types of invoices that were forwarded to him. The Court defers to the Referee's finding that Defendant owes Plaintiff $350.00 in reimbursement for Dr. W's bills.

The Referee recommends that Defendant not be charged $500.00 for the gynecologist appointment with Dr. WG for P.S. because it was not routine in nature and Defendant did not provide consent. The Court defers to the Referee's finding that Defendant is not responsible for Dr. WG bills.

The Referee recommends that Defendant not be held liable for blood work for D.S. performed at [hospital] because Plaintiff did not submit any evidence of this expense. The Court defers to the Referee's finding that Defendant does not owe Plaintiff $425.00 in reimbursement for blood work since the same was not supported by evidence.

The Referee recommends that Defendant should be chargeable for Dr. M's services for D.S. The Referee found that Defendant's withdrawal of consent for Dr. M's services after approximately 5 months was unreasonable because D.S. was responding positively to her medication. It was also noted that although Plaintiff sought reimbursement of $3,325.00 the evidence showed an outstanding balance of $2,375.00. The Court confirms the Referee's finding that Defendant owes Plaintiff $2,375.00 in reimbursement for Dr. M's bills since that is the amount established by the record evidence.

The Referee recommends that Defendant should not be held liable for Dr. S's service fees for D.S. in the amount of $4,250.00. Plaintiff failed to present any evidence suggesting that Defendant has previously paid for such services. Nor was there evidence presented to establish that Defendant had proper notice of these costs. The Court defers to the Referee's finding that Defendant is not liable for Dr. S's fees.

Allergy Treatment Trips for P.S.

One of the parties' children, P.S., has been receiving treatment from an allergy center in Los Angeles, California. Plaintiff seeks a modification of the Referee's recommendation that Defendant pays for 33% of the November 2020 Allergy Treatment trip, including costs to stay at the [Hotel] and a rental car. Plaintiff says that Defendant should be responsible for 50% of the trip for P.S.'s expenses, as pursuant to their settlement agreement. However, the Referee recommended this amount because the Plaintiff's sister accompanied Plaintiff and the child on the trip. Plaintiff claims that her sister did not stay with them at the hotel but gives no information as to where her sister stayed. The Court believes that the Referee's determination is substantiated by the record and should therefore be affirmed. Defendant should pay for 33% of the expenses for the hotel and rental car. Defendant should only be responsible for P.S.'s share of expenses for the trip, not the Plaintiff's nor Plaintiff's sister's expenses.

Plaintiff also seeks reimbursement for the four subsequent allergy treatment trips her and P.S. went on in 2021 and 2022. These specific trips were not raised at the time of the hearing before the Referee and therefore must be submitted in a separate, new motion.

Fees for Treatment by Dr. R

The Referee has recommended that Defendant pay for part of therapist Dr. R's bills for treatment for the children. Defendant paid for Dr. R's bills from 2011 until March 2013. Defendant then withdrew his consent to Dr. R's treatment of the children and ceased paying for the services. In December 2013, Defendant's counsel emailed Plaintiff's counsel indicating that the Defendant does not support Dr. R's working as the children's therapist. Defendant told Plaintiff he believed the therapist was harmful and toxic to the children. In February 2015, Defendant asked Dr. R to step down as the children's therapist. Dr. R continued working with the children.

Plaintiff sought reimbursement of $37,500.00 for services given to D.S. from March 2013 through October 2016 and services given to P.S. from March 2013 through April 2014. As per the parties' settlement agreement, Defendant is to pay 100% of the unreimbursed medical expense, so long as he is consulted in advance and consents to the treatment. The Referee reasonably determined that Defendant was allowed to withdraw his consent. Indeed, nowhere in the settlement agreement is there a provision preventing him from doing so. Because of this, the Referee recommends that Defendant owes Plaintiff a reimbursement for any services not paid for from 2011 through December 18, 2013. The Referee recommends that Defendant not be responsible for any Dr. R's bills starting from December 18, 2013, which is the date his counsel formally told Plaintiff's counsel that Defendant no longer consented to Dr. R's treatment of the children.

Subsequent to the Report and Recommendation, Defendant has moved to disaffirm the portion of the report that recommends he is responsible for $13,200 in bills for Dr. R's through December 18, 2013. The Court agrees that Defendant is responsible for 100% of the medical expenses of the children, but only when he is consulted in advance and consents to the medical treatment. When Defendant indicated to Plaintiff through their respective counsel that he was no longer approving of treatment by Dr. R, he withdrew his consent and was no longer responsible for the medical bills from Dr. R's treatment. However, Defendant had originally consented to the treatment from 2011 until December 18, 2013, and therefore is responsible to pay those costs. Defendant is not responsible for any bills from Dr. R from December 18, 2013 onward. The Court thus confirms the Referee's finding that Defendant owes Plaintiff $13,200.00 in reimbursement for Dr. R's bills.

Housekeeper Charmaine's Salary & Taxes

The Referee recommends that Plaintiff be awarded the amount of $111,474.20 for reimbursement of C's salary and taxes from September 2016 until July 2021. The Referee relied on the settlement agreement between the parties which stated that Defendant would pay for 50% of the cost of a weekend housekeeper/helper. Defendant and Plaintiff previously used the same housekeeper, with the housekeeper moving between house to house with the children. Defendant no longer uses the services of the shared housekeeper. He interprets the agreement to mean that he pays for a 50% share of a housekeeper's salary and taxes, but only when he is also using those services in his own home. Therefore, he believes that his 50% payment of her salary should now be 0%.

The Referee stated that the Settlement Agreement does not indicate that Defendant would only pay for 50% of the housekeeper's salary if the Defendant is using the services at his house. In interpreting a marital contract, a court should construe it in such a way as to 'give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized.' Khorshad v. Khorshad, 121 AD3d 857 (2nd Dept. 2014); Moss v. Moss, 91 AD3d 783 (2nd Dept. 2012); quoting Hyland v. Hyland, 63 AD3d 1106 (2nd Dept. 2009). Where the contract is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the instrument and not from extrinsic evidence. DeCamello v. DeCamello, 56 Nys3d 542 (2nd Dept. 2017); Khorshad v. Khorshad, 121 AD3d 857 (2nd Dept. 2014). Here, the settlement agreement states, with no other stipulations, that the parties would split the costs of a weekend housekeeper/helper. This agreement did not state that the parties would both be using the housekeeping services, nor did it say that the Defendant's obligation was contingent on him making use of the services in his own home. For this reason, Defendant is obligated to reimburse Plaintiff for 50% of C's salary and taxes. The Court, in accordance with CPLR § 4403 affirms this recommendation by the Referee.

The Referee's recommendation is that Defendant owes 50% of C's salary and taxes, as stated in the agreement. However, the Referee incorrectly calculated Defendant's share of the 2020 taxes. The amount listed in the Report and Recommendation for the 50% share of the 2020 taxes is $13,559.00, which in fact is the entirety of C's 2020 taxes. The correct amount owed by Defendant for C's 2020 taxes is $6,779.50 or half the total amount. Combining the total salary reimbursement owed of $97,915.20, Plaintiff shall be awarded $104,694.70 for reimbursement of both C's salary from September 2016 through July 2021 and C's 2020 taxes.

Plaintiff is also seeking reimbursement for 50% of C's salary and taxes from July 19, 2021, through May 9, 2022. This motion is to confirm or disaffirm parts of the Report and Recommendation by the Referee. Plaintiff will have to file a new motion to seek reimbursement of 50% of the housekeeper salary from July 19, 2021, through May 9, 2022.

Babysitter/Housekeeper Rose's Salary & Taxes

Plaintiff moves to modify the Report to direct Defendant to pay $129,233.54 in arrears for R's salary and taxes from June 1, 2019, through July 16, 2021. R works for the family, but her title is unclear, and Plaintiff believes her to be a babysitter. The Referee concluded that R is a weekday family housekeeper, not a babysitter. Pursuant to the parties' settlement agreement, Defendant must pay 100% of all babysitting costs for the children. Defendant is not however, obligated to pay for a full-time weekend housekeeper.

The two children of the marriage are now 16 and 21 years old, the older of which lives in her own apartment. R cleans the house, makes dinner, does laundry, drives the younger child around, and takes care of the dog. The Referee determined that R cannot be considered solely a babysitter, as her role is one that resembles a housekeeper. This Court agrees that R must be considered a weekday housekeeper and not a babysitter, and thus Defendant is not obligated to pay for any of the costs of employing R. A Court generally defers to the Referee's findings because the Referee is the person in "the best position to weigh the evidence and make credibility determinations." Andersen v. Weinroth, 48 AD3d 121, 133 (1st Dep't 2007). The Court now defers to the Referee's findings that R be considered a weekday housekeeper, not a babysitter, and thus Defendant is not responsible for R's salary or taxes.

Counsel Fees

Both parties requested an award of counsel fees from the other. The parties' settlement agreement states that one party will indemnify the other when the first party defaults on the settlement agreement and that default is not remedied within twenty days after a written notice, and the defaulting party agrees to reimburse the other party for any and all expenses including attorney's fees for a proceeding brought to enforce the agreement. The Referee recommended that both parties pay for their own counsel fees because both parties are able to and because both parties have defaulted on certain provisions of the settlement agreement. Plaintiff did not consult with Defendant for various things including tutoring, medication, and doctors for the children. Defendant also did not respond to multiple requests by the Plaintiff regarding certain decisions made for the children and has previously withdrawn his consent unreasonably. Defendant also defaulted and failed to pay various expenses that were without question his obligation to pay.

In Colyer v. Colyer, 83 AD3d 559 [1st Dept 2011], the First Department found that entitlement to attorneys' fees in connection with the proceeding arose not from the provisions of the Domestic Relations Law, which accords the court discretion in setting fees, but from the parties' separation agreement. Here, the parties Settlement Agreement has a clear provision that entitles the prevailing party to an award of counsel fees from the defaulting party. In Hensley v. Eckerhart, 461 US 424 (1983), the Supreme Court held that "under the statute limiting fee awards to prevailing parties, unrelated claims should be treated as if they had been raised in separate lawsuits, and that no fee may be awarded for services on the unsuccessful claim." And, the "substantially prevailed" analysis has been used in these type of proceedings (see Millard v. Millard, 246 AD2d 349 [1st Dept 1998]).

Here, Plaintiff has substantially prevailed on her claims given that she was awarded approximately 63% of the reimbursement sought in connection with the enforcement of this agreement. The Court confirms the Referee's reasoned judgment as to the Defendant being responsible for his own counsel fees. However, based on equity, financial disparities between the parties, the dictates of the parties' agreement, and considering the actions of both parties, the Court finds that Defendant is responsible for $97,936.59, or 50% of Plaintiff's counsel fees.

Conclusion

As discussed above, the Court now confirms the Report which is well founded and supported by the record, with the exception of the incorrect calculation of Defendant's share of the housekeeper's 2020 taxes and an award of counsel fees. The Report and Recommendation is otherwise confirmed.

Accordingly, it is hereby

ORDERED that the Report is affirmed to the extent indicated and disaffirmed to the extent indicated in this Decision; and it is further

ORDERED that Defendant pay Plaintiff a total of $139,456.96 in arrears and reimbursements; and it is further

ORDERED that Defendant pay Plaintiff a total of $97,936.59 in counsel fees attributed to these proceedings; and it is further

ORDERED that any relief not granted is denied.

This constitutes the Decision and Order of the Court.

DATE 10/14/2022

ARIEL D. CHESLER, J.S.C.

Ariel D. Chesler, J.