Decision Redacted

SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: TIMOTHY S. DRISCOLL, JUSTICE

TRIAL/IAS PART 25

_______________________________________X LEE-AYN CHAPLIN,

Plaintiff,

Index No. 025952-1999 Motion Sequence #s: 5, 6, 7

&8 -against-

Submission Date: 3/13/09

STUART CHAPLIN, Defendant. _______________________________________X Papers Submitted:

Order to Show Cause, Affidavit in Support, Affirmation in Support and Exhibits.............................................................................................................x

Notice of Cross Motion, Affidavit in Opposition/Support, Affirmation in

Opposition/Support and

Exhibits......................................................................x Notice of Motion, Affidavit in Support, Affirmation in Support and

Exhibit..x

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Notice of Cross Motion, Affirmation in Opposition/Support and

Exhibit........x

Reply Affidavit in Further

Support/Opposition, Reply Affirmation in

Further Support/Opposition and Exhibits..........................................................x Reply Affirmation in Further Support/Opposition............................................x Reply Affidavit and Exhibit...............................................................................x Reply Affirmation in Support of Cross Motion.................................................x

Reply Affidavit and Exhibits..................................................x

Defendant’s Sur-

This post-judgment matter is before the Court for decision on 1) the Order to Show Cause filed by the Defendant-Husband (“Husband”) on November 19, 2008 in which he, again, seeks a downward modification of his child support obligations (“Husband’s Motion for a Downward Modification”), 2) the Cross Motion filed by Wife on January 2, 2009 in which she seeks a money judgment for alleged child support arrears, as well as other relief (“Wife’s Motion for Arrears”), 3) the Motion filed by Husband on January 16, 2009 in which he seeks to disqualify Wife’s attorney (“Husband’s Motion to Disqualify Counsel”) and 4) Wife’s Cross Motion seeking counsel fees (“Wife’s Counsel Fee Motion”), all of which were submitted on March 13, 2009. The Court 1) denies Husband’s Motion for a Downward Modification in its entirety; 2) grants Wife’s Motion for Arrears in part and 2

denies it in part; 3) denies, as moot, Husband’s Motion to Disqualify Counsel; and 4) denies Wife’s Counsel Fee Motion, in light of the Court’s counsel fee award in connection with Wife’s Motion for Arrears. For the reasons set forth in detail below, the Court’s decision is as follows: 1) the Court denies Husband’s Motion for a Downward Modification; 2) directs Husband to pay Wife, within sixty (60) days of this decision, the sum of $5,834 representing child support arrears and directs, further, that if Husband fails to pay those arrears as directed, the Court grants Wife’s application for a money judgment against Husband in the sum of $5,834 plus statutory interest, retroactive to the date of default; 3) denies, as moot, Wife’s application for leave to amend her request to include additional arrears that have accrued during the pendency of this proceeding, as Wife’s request for $5,834 encompasses those additional arrears; 4) denies, as moot, Wife’s application to direct Husband to provide proof of life insurance, in light of Husband’s affirmation and documentation reflecting the existence of that life insurance; 5) grants Wife’s application for counsel fees to the extent that the Court directs Husband to pay Wife’s counsel fees in the sum of $2,500 and, further, directs Husband to provide Wife’s counsel with that sum within sixty (60) days of this decision; and 6) denies, as moot, Husband’s application to disqualify Wife’s counsel, in light

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of the Court’s denial, in its entirety, of Husband’s Motion for a Downward Modification.

BACKGROUND A. Relief Sought This is a post-judgment matter in which the parties are making the following applications: Husband, in his Motion for Downward Modification, requests an Order granting him a downward modification of his child support obligations. Wife opposes Husband’s application. Wife, in her Motion for Arrears, seeks an Order: 1) granting Wife a money judgment against Husband in the sum of $2,917, representing child support arrears; 2) granting Wife leave to request a judgment for additional arrears that may accrue during the pendency of this proceeding; 3) directing Husband to provide proof of required life insurance coverage and 4) awarding Wife counsel fees she incurred in responding to Husband’s Motion for Downward Modification. Husband opposes Wife’s applications. In his Motion to Disqualify Counsel, Husband requests an Order disqualifying Wife’s attorneys from representing Wife, due to an alleged conflict of interest. Wife opposes Husband’s application.

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In her Counsel Fee Motion, Wife requests an Order directing Husband to reimburse Wife for counsel fees she incurred in defending against Husband’s applications. Husband opposes Wife’s application. B. The Parties’ History The parties were married on December 29, 1984 and have two children (collectively “Children”). They subsequently separated and executed a Stipulation of Settlement (“Stipulation”) dated April 12, 2000 that was incorporated but not merged into the judgment of divorce (“Judgment”) dated July 24, 2000. There are provisions in the Stipulation and Judgment regarding a biennial adjustment of the Defendant’s child support obligations. The Stipulation provides, in pertinent part, that “The parties agree that the Husband’s child support obligation shall be adjusted every two (2) years commencing on February 1, 2002 and every two (2) years thereafter .” The Judgment reads, “Said sum [the support payments] shall be adjusted every two (2) years commencing February 1, 2002.” In 2004, Plaintiff filed an application in Nassau County Family Court (hereinafter “Family Court”) seeking an upward modification of Defendant’s child support obligations. Defendant opposed that application and also filed a petition in Family Court seeking, inter alia, a downward modification of his child support obligations. Plaintiff opposed that application. Support

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Magistrate Patricia Bannon in Family Court concluded that an upward modification of Defendant’s child support obligations was warranted based on the Defendant’s income and increased the required child support payments in a decision dated March 29, 2006. By Order to Show Cause filed August 14, 2007 in Nassau County Supreme Court (“2007 Application”), Husband moved for an order granting certain relief, including a downward modification of his child support obligation to the Children.

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Husband is a mortgage loan officer employed

by Preferred Empire Mortgage. In the 2007 Application, Husband provided documentation in support of his claim of a change in circumstances, including articles concerning the depressed housing market, affidavits refuting Wife’s claims with respect to financial benefits received by Husband from his girlfriend (“Girlfriend”) and tax returns reflecting an increase in Wife’s income. In the 2008 Decision, the Court held that Husband had provided specific factual allegations that warranted a hearing on his request for a downward modification. In lieu of proceeding with the hearing, Husband entered into a stipulation with Wife that resolved the 2007 Application. That stipulation was placed on the record, before this Court, on March 25, 2008 (“2008 Stipulation”).

Counsel for Wife advised the Court that the parties “worked

1 The 2007 Application was assigned Motion Sequence # 3. 6

out the numbers as to what the amount is that Mr. Chaplin should pay,” and placed the parties’ agreement on the record. The agreement placed on the record included a recitation of the parties’ gross incomes and adjusted gross incomes, and a statement that Husband’s child support obligation shall be $35,000 per year, which is $2,917 per month or $673 per week, based on a combined parental income of $172,000 and a pro rata division of 81.5% for Husband and 18.5 % for Wife. Husband’s attorney confirmed that Wife’s attorney accurately set forth the parties’ agreement. The Court then asked Wife whether she had consulted with her attorney and believed the 2008 Stipulation was in her best interests and Wife responded in the affirmative. The Court then had the following colloquy with Husband: The Court: Sir, you have consulted with your attorney and you believe that

settlement is in your

best interests: Husband:

If I may ask a question:

The Court: Yes. Husband:

As you may have been aware from the court

documents, I am in one mortgage industry.

of the worse [sic] industries in the country, the

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My income has gone down substantially in 2007 which you probably took note of. My question of you is if the dire straits of the industry continue in 2008, even though it is not a two-year window, am I able to have further discussions with any people in the court about this? The Court: You certainly should speak with Ms. Horowitz and ask her that very question. She will interpret the relevant documents and I think she is the best person to start that inquiry with. Husband:

Even though it is, quote, unquote, in my agreement, in

two years if dire circumstances do occur – you can’t answer

that?

The Court: I am saying I can’t answer that. I am not in a position to give you legal advice, but Mrs. Horowitz is certainly very experienced in this field and she can probably be the best person to start giving you legal advice. Husband:

Thank you, your Honor.

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The Court: Thank you all. Husband does not dispute that he entered into the 2008 Stipulation knowingly and voluntarily, in lieu of proceeding with the hearing that the Court directed. However, he now seeks a further downward modification of his child support obligations, alleging in his Affidavit in Support dated November 18, 2008, that he has “suffered an unanticipated and unreasonable change of circumstances which has made it an extreme hardship for me to continue to pay child support at the current level[,]” claiming, specifically, “ I am a mortgage broker, and within the last few months have experienced unprecedented turmoil and change in the mortgage market, such that I can no longer meet my child support, college, health insurance and life insurance obligations.” In support of his claim that the mortgage business has suffered a severe decline since his 2007 Application and the 2008 Stipulation, Husband provides documentation including a) a document dated October 23, 2008 from the CNBC website reflecting comments made by Alan Greenspan regarding the severity of the breakdown of the credit markets, b) a document from the MSNBC website dated November 19, 2008 regarding a Commerce Department report of a higher-than-expected drop in the construction of new homes and apartments and c) a document from the

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CNBC website dated November 18, 2008 reflecting an observation of an executive of a community finance site who said that he’s “noticing a lot of people are holding off on buying, even with prices down.” Wife submits that the market forces to which Husband refers were anticipated. Moreover, she provides documentation that suggests that there have, in fact, been positive changes in the real estate market since the 2008 Stipulation. As an example, Wife provides an article from the Associated Press, dated December 18, 2008, that discusses the recent drop in the rates on 30-year fixed mortgages to their lowest levels in at least 37 years, as well as the Federal Reserve’s pledge to “pour money into the mortgage market in an effort to spur the moribund U.S. housing market.” That article includes the sentence, “Mortgage brokers are already reporting a surge of calls from borrowers trying to take advantage of the Federal Reserve’s extraordinary actions [in cutting the federal funds rate and pledging to funnel money into the market].” Wife also submits that Husband is living a pampered existence that belies his claims of financial need. Wife provides a copy of the transcript of Girlfriend’s deposition, which was conducted on March 19, 2008, which provides insight into the style in which Husband is living and the expenses that he is paying.

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Husband lives with his Girlfriend in her home located in Old Westbury, New York (Tr. 5) and has lived there for approximately the last six (6) years (Tr. 14).2 Although Girlfriend could not provide a market value of her home, she testified that it has approximately 2,800 to 3000 square feet of living space that includes five (5) bedrooms and three (3) full bathrooms, and has a pool and a tennis court (Tr. 13-14). Wife provides a document from the Nassau County Department of Assessment reflecting that Girlfriend’s house had a fair market value of $2,132,900 in 2008. Girlfriend’s deposition includes the following testimony regarding the expenses for which Husband pays:

Road?

Wife’s Atty: What expenses, if any, does he pay for at 72 Wheatley

Girlfriend:

Well, he pays for waste removal. He pays for cable.

He pays for the home phone, the land line. He pays for a portion of the oil heat bills, LIPA, okay...He pays for upkeep and maintenance, depending of the gardening,

on the needs at different times of the year, parts the pool, vacuuming. The tennis court, the Har-

Tru. He pays for a 2 (Tr. ) refers to the particular page(s) of Girlfriend’s deposition testimony. 11

handyman, things that break, repairs. (Tr. 14-15) Girlfriend testified, further, that Husband has been paying for these expenses since he has been living in her home. She testified that the oil heat can cost up to $700 or $800 per month, that the LIPA bill is an average of $400 per month (Tr. 17), waste removal is $800 or $900 a year and cable is $140 per month (Tr. 19). Girlfriend also testified that Husband contributes $700 to $800 per year to gardening costs and $5,000 per year towards housekeeping expenses (Tr. 20).

Husband paid $700 to $800 in

2007 for chemicals for the pool (Tr. 21) and approximately $500 to replace the Har-Tru on the tennis court (Tr. 22). Girlfriend also testified that she purchased two (2) condominiums in 2006 and that Husband’s name was on the title to one of those condominiums (located in North Carolina) because he assisted her in obtaining a mortgage, though she denies that he contributed to the purchase price of that condominium (Tr. 38-40). Girlfriend also testified that she and Husband opened a joint account with Husband to facilitate his maintaining medical insurance for her through his employment, though she does not know how much Husband pays to include her on his insurance policy (Tr. 44-45).

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With respect to Wife’s remaining applications in her Motion for Arrears, Husband has provided proof that he is compliance with the provisions in the Stipulation and Judgment relating to life insurance, and Wife does not dispute that. With respect to child support arrears, Wife affirms, in her Reply Affidavit dated February 26, 2009, that Husband is in arrears with respect to child support payments in the sum of $5,834. While Husband takes issue with assertions Wife makes about the Children’s future college enrollment that may reduce Husband’s obligations in the future, he does not dispute Wife’s claim regarding the total child support arrears. Wife also seeks counsel fees that she incurred in responding to Husband’s instant motion, submitting that Husband is improperly seeking this downward modification on the identical grounds that he alleged in his 2007 Application because of what Wife characterizes as his “insatiable desire to limit his child support obligations to me.” Wife affirms that she paid her attorney a retainer of $5,000 and a statement dated December 30, 2008, attached as an exhibit to her first Cross Motion, reflects actual charges of $3,718.75. In her second Cross Motion, Wife affirms that, since January 19, 2009, her legal fees were $2,861.25. With respect to Husband’s Motion to Disqualify Counsel, Husband seeks disqualification of Wife’s counsel on the grounds of a potential

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conflict relating to the potential testimony of an individual named Marc Schwaber, the president of the company for which Husband works. Husband affirms that Mr. Schwaber was represented by Wife’s counsel in his own divorce and is still represented by him in the context of his own application for a downward modification.

Wife, in her Counsel Fee

Motion, submits that Husband’s motion is frivolous, and seeks counsel fees that she incurred in responding to that motion. C. The Parties’ Positions Husband seeks a downward modification of his child support obligations, submitting that there has been an unanticipated downturn in the mortgage market since the 2008 Stipulation. He also seeks disqualification of Wife’s counsel on the basis of a conflict with respect to Husband’s employer, who might testify at a hearing on Husband’s modification application. Wife opposes Husband’s modification application, submitting that, in light of the circumstances of the 2008 Stipulation, the changes to which Husband refers were anticipated and foreseeable. She also requests a judgment against Husband for child

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support arrears, as well as counsel fees that she incurred in opposing Husband’s application which, she submits, is frivolous. Finally, Wife disputes Husband’s contentions regarding the alleged conflict regarding her counsel and submits that Husband’s sole motivation in making that application is to remove the attorney who has been successful in opposing Husband’s numerous applications to reduce his child support obligations. RULING OF THE COURT A. Downward Modification DRL § 236, Part B(9)(b) provides, in pertinent part, that upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance. Husband must demonstrate an unreasonable and unanticipated change in circumstances since the time he entered into the

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2008 Stipulation. Arciniega v. Arciniega-Luizzi, 48 A.D.3d 677 (2d Dept. 2008). The Court concludes, under the circumstances, that Husband has not met his burden of demonstrating a change in his circumstances that would warrant a hearing on his application. Husband based his 2007 Application on the same theory on which he bases the current application, a reduction in the mortgage market, and voluntarily entered into the 2008 Stipulation in lieu of proceeding with a hearing.

The changes that

Husband refers to in his instant motion were anticipated, as demonstrated by Husband’s discussion of them when he entered into the 2008 Stipulation. Moreover, the housing and related mortgage markets are, by their nature, fluctuating and some variation is to be expected. The Court feels constrained to add that it does not share Husband’s view of what constitutes an “extreme hardship.” While the Court appreciates that Husband will necessarily incur living expenses by virtue of his residence outside of the parties’ marital residence, the deposition of Girlfriend reflects that Husband is living very well and paying for expenses that many people would view as a luxury.

The Court senses

a certain entitlement on the part of Husband and his Girlfriend, who do not appreciate that Husband’s financial obligations to his Children are

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paramount. To be clear, if Husband has to choose between paying for Girlfriend’s pool, tennis court and housekeeper, and meeting his financial obligations to his Children, he must choose the latter. B. Arrears In light of the Court’s denial of Husband’s Motion for a Downward Modification application, and there being no dispute by Husband as to the sum of arrears, the Court directs Husband to pay Wife, within sixty (60) days of this decision, the sum of $5,834 representing child support arrears. The Court denies, as moot, Wife’s application for leave to amend her request to include additional arrears that have accrued during the pendency of this proceeding, as Wife’s request for $5,834 encompasses those additional arrears. If Husband fails to pay those arrears as directed, the Court grants Wife’s application for a money judgment against Husband in the sum of $5,834 plus statutory interest, retroactive to the date of default. C. Life Insurance In light of the documentation that Husband provides reflecting his compliance with his obligations regarding life insurance, the Court denies, as moot, Wife’s application regarding life insurance. D. Disqualification of Counsel

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In light of the Court’s denial of Husband’s Motion for a Downward Modification in its entirety, thereby obviating the potential need for the testimony of his employer Mr. Schwaber, the Court denies Husband’s Motion to Disqualify Counsel as moot. E. Counsel Fees 22 NYCRR § 130-1.1(a) authorizes the court, in its discretion, to award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. § 130-1.1(c ) provides that conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or(3) it asserts material factual statements that are false. DRL § 237(c) provides that in any action or proceeding for failure to obey any lawful order compelling payment of support or maintenance, or distributive award the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the attorney representing the petitioner.

DRL § 238 provides that in any action or proceeding to

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compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, or other designated proceedings, the court may in its discretion require either party to pay the expenses of the other in bringing, carrying on, or defending such action or proceeding. The Court declines to award counsel fees pursuant to 22 NYCRR § 130-1.1(a) or

DRL § 237(c) but does award counsel fees pursuant to

DRL § 238, in light of the relative financial positions of the parties and the resources

Wife

has

expended

in

opposing

Husband’s

applications.

Accordingly, the Court grants Wife’s application for counsel fees to the extent that the Court directs Husband to pay Wife’s counsel fees in the sum of $2,500 and, further, directs Husband to provide Wife’s counsel with that sum within sixty (60) days of this decision.

All matters not decided herein are hereby denied. This constitutes the decision and order of this court. DATED:

Mineola, New York

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April 21, 2009

________________________________ Hon. Timothy S. Driscoll, J. S. C.

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