P.G., Plaintiff, v. P.G., Defendant. (2023)

In this post-judgment proceeding, the Defendant ex-wife files this Order to Show Cause (OTSC) seeking a court order directing the plaintiff ex-husband to endorse a December 19, 2019 $300,000 insurance check to her and for an award of counsel fees.

The Plaintiff ex-husband cross-moves for multiple prayers for relief, namely 1) denying the relief sought in Defendant's OTSC, except to the extent of granting Defendant 40% of the proceeds received from the insurance company less all sums allegedly due and owed to Plaintiff as set in his papers; 2) directing Defendant to provide Plaintiff with the original deed to their Bridgehampton Residence; 3) directing Defendant to provide Plaintiff with the access and password to the parties' child's College Savings Account in accordance with the terms of the parties' Stipulation of Settlement ("Agreement"); 4) directing Defendant to return select bottles of wine or their replacement value of $61,656, and to return to Plaintiff other items allegedly removed from the Bridgehampton Residence in conflict with the parties' underlying Agreement; and 5) granting Plaintiff such other and further relief as the Court deems just and proper including an award of attorney's fees and expenses that are incurred with respect to Defendant's applications and cross-motion.

During oral argument on August 4, 2022, it appears that the issues of the husband's access to the children's college accounts and any property from the Bridgehampton Residence were resolved. Accordingly, these issues will not be addressed in this decision. Importantly, during this same oral argument, this Court directed counsel and the parties, on the record, to endorse the $300,000 insurance check in question and hold the proceeds in escrow, to which all present during said appearance cited no objection.

Underlying Agreement & Earring History

At (main) issue here, are a pair of platinum diamond earrings. Pursuant to the parties' underlying November 2016 Settlement Agreement, the parties each retained possession of their own jewelry (See Agreement at para 22). It was also agreed on the record during oral argument that these specific earrings were disclosed during discovery and settlement discussions and it was specifically contemplated that they would remain the Defendant's property.

Defendant's affidavit indicates that her last memory of having the earrings was in August 2013, that she had not worn the earrings since the 2015 divorce filing, that she moved twice in 2015 and 2017, and officially reported them missing in May 2019. Defendant also clarified under oath that the first time she realized the earrings were missing was in May 2019. Specifically, she attempted to retrieve the earrings from her safe and discovered they had been replaced with costume earrings.

In August 2019, she filed a claim under her own Chubb renter's insurance policy. The claim was denied but she was permitted to refile that claim under the parties' joint Chubb policy because that policy was in effect at the time the earrings were definitively known to exist (August 2013). After investigation, a check was issued in December 2019, payable to both parties, however, Plaintiff would not endorse it until other issues of his concern were addressed.

In his cross-motion, Plaintiff ex-husband alleges that the Defendant knew the earrings were missing at the time of the signing of the underlying Agreement in 2016 and that she is, therefore, subject to a 60/40 penalty provision for withholding them as a known asset. The 60/40 penalty provision in their underlying Agreement (Agreement at para 27) indicates that if by accident and/or intentional omission by either party of any one or more financial asset(s) owned by the other with a fair market value in excess of $25,000, not identified in the Agreement, then the other shall be entitled to 60% or more of its value. Plaintiff's argument is unavailing. Indeed, this 60/40 provision specifically applies to brokerage, bank, and other similar types of accounts but has no relation, and is therefore not applicable, to the jewelry at issue here. Further, the earrings in question were specifically identified and known to all and were understood and believed to be in Defendant's possession at the time of the agreement.

It is well settled that a stipulation of settlement in a divorce action is a contract subject to the principles of contract construction and interpretation and 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 (see Rainbow v Swisher, 72 NY2d 106, 109 [1988]; see also Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990]). Further, "[a]n ambiguity exists only where the agreement on its face is reasonably susceptible to more than one interpretation" ' (Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). Here, there is no ambiguity; the earrings are the ex-wife's separate property under the Agreement. Thus, the proceeds of the check from the insurance claim also belongs to her.

Accordingly, the branch of the Plaintiff ex-husband's motion seeking any portion of the Chubb insurance monies is denied and the wife's motion seeking endorsement of that check is granted. It is further Ordered that the funds held in escrow from the insurance check shall be paid to the Wife no later than 20 days from the date of this order.

Ancillary Cross-Motion Relief

In his cross-motion, Plaintiff ex-husband seeks for this court to direct the Defendant ex-wife to immediately pay him the sum of $3,467.76 representing 50% of the funds she allegedly wrongfully transferred from Plaintiff's account into her own account. These monies were not wrongly taken by the ex-wife as it was her half share of proceeds distributed in accordance with a joint Fidelity account. Accordingly, this branch of the cross-motion is denied.

Regarding the ex-husband's claim of shared expenses relating to child-care expenses, child support and add-ons, it does not appear that he provided proof that he sent her bills for these expenses. Defendant also indicates that she sent him bills and that he owes her money to cover some of the shared expenses. Accordingly, this branch of the cross-motion is denied without prejudice and the parties are directed to send each other the requisite information entitling them to the reimbursements alleged.

Regarding the Plaintiff ex-husband's claim for the return of missing wine or the value of that wine, Defendant ex-wife, in her affidavit, not only denies taking the wine but also denies even having access to it. Moreover, upon information and belief, the Plaintiff ex-husband filed an insurance claim for this missing wine which was denied. In any event, there is no basis on this record to award any relief to Plaintiff regarding the wine. Accordingly, this branch of the motion is denied.

Similarly, Plaintiff ex-husband alleges that Defendant ex-wife remains in possession of the Bridgehampton deed and utilized it in connection with her purchase of a new home in the Hamptons; he also informs the court that he (was) in the process of purchasing a new home in the Hamptons and requires the original Bridgehampton deed in connection with that transaction. The wife has credibly represented that she did not utilize or even need to utilize a deed of the marital residence in order to make a purchase on another property. Moreover, she notes that she is not in possession of the deed. Accordingly, this branch of the cross-motion is denied.

Counsel Fees

In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law ["DRL"] § 237, 238). DRL § 237 and § 238 further create a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption reflects the strong policy concern of ensuring "that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" (Charpie v Charpie, 271 AD2d 169, 170 [1st Dept 2000]). It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties (id. at 171). However, in addition to looking at the incomes of the parties, "in exercising its discretionary power to award counsel fees, a court should review . . . all the other circumstances of the case, which may include the relative merit of the parties' positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).It is also well settled that the court may award one party counsel fees stemming from the other party's "misconduct resulting in unnecessary escalation of litigation costs." See e.g. Schorr v. Schorr,46 AD3d 351 (1st Dept 2007); Morrissey v. Morrissey, 259 AD2d 472 (2d Dept 1999).

Here, counsel for Defendant has provided the requisite documentation to satisfy a claim for counsel fees associated with the costs of filing this motion. At the time of the filing, counsel claimed $6,000 worth of services to bring this motion forward to the court but did not yet include the costs to cover further filings and/or the oral argument. The court has reviewed the billing records and finds the hours and amounts billed to be reasonable and necessary, and based on the additional work performed through oral argument, concludes that such additional work was necessary. Further, the Court finds that the counsel fees were incurred due to the Plaintiff's refusal to simply follow the plain language of the parties' Agreement and sign over the insurance proceeds to Defendant.

In light of the foregoing analysis, in which the court has considered the merits of the parties' positions, it is concluded that plaintiff shall be required to pay the sum of $10,000 as and for an award of counsel fees.

Accordingly, it is

ORDERED that the $300,000 held in escrow from the insurance payment shall be paid to the Defendant ex-Wife no later than 20 days from the date of this order; and it is further

ORDERED that the Plaintiff ex-Husband's branch of the cross-motion seeking any share of the jewelry proceeds is denied; and it is further

ORDERED that Defendant ex-wife is entitled to counsel fees in the amount of $10,000. Within 30 days from the date of this Order, Plaintiff shall pay the sum of $10,000 directly to Defendant's counsel; and it is further

ORDERED that any other relief not expressly granted is denied.

Date: 3/3/2023

Hon. Ariel D. Chesler, A.J.S.C

Ariel D. Chesler, J.