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Jod’s and the Battle of New Orleans

Jod's and the Battle of New Orleans

Matrimonial Litigation

Issues of Interest

Submitted by Ronald A. Phillips, Esq., Member Family Law Section – Fellow, American Academy of Matrimonial Lawyers

JOD's AND THE BATTLE OF NEW ORLEANS

In 1814, the Americans fought the British at the Battle of New Orleans. Unfortunately the battle took place after the War of 1812 had ended; the British had already surrendered (surrender being nothing more than a one-sided settlement). Today, we must fight similar battles after the separation agreement is signed. We must than submit a Judgment of divorce which allows for the ultimate enforcement remedy; contempt. This is yet one more battle after the war is over. A simple incorporation paragraph, (hereinafter referred to as a "new J-13" or an "old J-13"paragraph) does not provide the court with the mandate necessary to enforce its own orders by way of contempt. It is important to include specific paragraphs if you believe there will be enforcement problems in the future.

At one time both DRL § 244 and DRL 245 required a "clear and unequivocal mandate of the court" before relief would be granted. This included both money judgments and contempt. In 1988, the legislature modified some of the enforcement remedies used by matrimonial attorneys. With respect to DRL § 244, they modified it in part as follows:

"Where a spouse in an action for divorce, separation or annulment, or declaration of nullity of a void marriage, or a person other than a spouse when an action for an annulment is maintained after the death of a spouse, defaults in paying any sum of money as required by the judgment or order directing the payment thereof, or as required by the terms of an agreement or stipulation incorporated by reference in a judgmentsuch direction shall be enforceable pursuant to section fifty-two hundred forty-one or fifty-two hundred forty-two of the civil practice law and rules. Upon application the court shall make an order directing the entry of judgment for the amount of arrears of child support together with costs and disbursements. The court shall make an order directing the entry of judgment for the amount of arrears of any other payments so directed,…." (italics indicate modification relating to enforcement of language in agreement).

A historical discussion is required before we go on. First of all, prior to the adoption of the Uniform Rules for the Supreme and County Courts (22 NYCRR 202), only one department, the Second Department, had rules for the preparation of matrimonial judgements. The requirements were set forth in the Second Department's rules, and specifically in 22 NYCRR 699.9. However, in 1985, the Court of Appeals said the form incorporation paragraph utilized at that time (the " old J-13") did not allow the court to enter an order specifically enforcing the provisions contained in the separation agreement. This changed the interpretation of the J-13 clause that the Appellate Division, Second Department had utilized for 20 years and was actually contained in 22 NYCRR 699.9 (f). In BAKER v BAKER, 66 NY2d 649, 495 NYS2d 959). Specifically, the Court of Appeals stated:

"Domestic Relations Law § 244 provides that upon "default in paying any sum of money as required by the judgment or order directing payment thereof, the court shall make an order directing the entry of judgment for the amount of such arrears". Here, in the language of the approved forms for matrimonial judgments set forth in the Second Department rule (22 NYCRR 699.9 [b] [1] [J13]), the judgment referred to the separation agreement entered into by the parties, and retained jurisdiction for the purpose of specifically enforcing the agreement or of "making such further decree with respect to alimony * * * as it finds appropriate under the circumstances existing at the time application for that purpose is made to it". As is stated in 22 NYCRR 699.9 (f) (4), however, "when paragraph J13 alone is used * * * there [is] no mandate by the court that the agreement or stipulation be carried out by the parties." It follows that there is in the divorce judgment which is the predicate for defendant's Domestic Relations Law § 244 application no requirement directing that any sum of money be paid, and, therefore, no basis, short of an action by defendant on the agreement itself, upon which judgment for arrears can be entered (Jaslow v Jaslow, 75 AD2d 876, 877-878; see, Vigo v Vigo, 97 AD2d 463, 464; Lewin v Lewin, 91 AD2d 649, 650-651). Zipparo v Zipparo (70 AD2d 616), relied upon by the Appellate Division, is not to the contrary for there the separation agreement was incorporated by reference in the divorce judgment."

The incorporation paragraph referred to in BAKER, supra., the "J-13" read as follows:

"J 13 Judgment-Separation Agreement or Stipulation

Ordered, Adjudged and Decreed that the (separation agreement, stipulation) entered into between the parties on the day of, 19 a copy of which is on file with the court, shall survive and shall not be merged in this judgment, and the court retains jurisdiction of the matter, concurrently with the Family Court, for the purpose of specifically enforcing such of the provisions of that (stipulation, agreement) as are capable of specific enforcement or, to the extent permitted by law of making such further decree with respect to alimony, support, custody or visitation as it finds appropriate under the circumstances existing at the time application for that purpose is made to it, or both, and it is further"

The current version of the incorporation paragraph, referred to as the "new J-13" reads as follows:

Separation Agreement or Stipulation

"Ordered and Adjudged that the (separation agreement) (stipulation) entered into between the parties on the ____ day of ____, 19 _, a copy of which is attached to and incorporated in this judgment by reference, shall (not survive and shall be merged) (survive and shall not be merged) in this judgment, and the parties hereby are directed to comply with every legally enforceable term and provision of such (separation agreement) (stipulation) including any provision to submit an appropriate issue to arbitration before a single arbitrator, as if such term or provision were set forth in its entirety herein, and the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing such of the provisions of that (separation agreement) (stipulation) as are capable of specific enforcement, to the extent permitted by law, and of making such further judgment with respect to maintenance, support, custody or visitation as it finds appropriate under the circumstances existing at the time application for that purpose is made to it, or both; and it is further"

Not much of a difference, but "incorporation by reference" is the exact exception language used in BAKER v BAKER, supra. in support of its explanation as to why in other cases a different result was reached.

It is imperative that you read the old 22 NYCRR 699.9 (f) which details what is required in judgments and the legal reasoning, reasoning that survived the repeal of the rule. 22 NYCRR 699.9 (f) reads as follows:

(f) Judgment.

(1) ClarityContempt proceedings will not lie unless the mandate of the judgment is clearly expressed so that it can be said with certainty that an act was a violation of its terms. General phrases such as "liberal visitation", "reasonable rights of visitation", "visitation on alternate holidays" (without specifying what holidays and if the holiday is of more than one days duration the number of days) are improper in a judgment. Unless explicit provisions are to be made in the judgment, it should simply preserve the right of the parties to move for more explicit direction.

(2) Family Court enforcement. Under the Family Court Act section 466(c), neither that court nor the Supreme Court has exclusive enforcement jurisdiction unless the matrimonial judgment expressly so provides. Unless the trial justice has expressly so directed on application made during the trial, the judgment may not contain any such limitation.

(3) Continuance of Family Court Order. When an order of the Family Court is to be continued, a copy of the order must be introduced in evidence. The judgment will then provide simply that the order, identified by the court, date and docket number, is continued, but will not spell out what the terms of the Family Court order were. After such a continuance, enforcement of the Family Court order is by the Family Court not the Supreme Court, so the judgment must also provide service of a copy of the Supreme Court judgment on the clerk of the Family Court which issued the order being continued.

(4) Stipulation or agreement between the parties. As a matter of policy, neither a property stipulation nor a separation agreement between the parties will be incorporated by reference in the judgment. While such a stipulation or agreement serves an important purpose since it obviates the necessity for testimony concerning need one the one side and financial ability on the other, blanket incorporation by reference will result in an unclear judgment if the wording of the stipulation or agreement is imprecise. It may also result in a judgment beyond the power of the court to make. Thus, though a provision waiving alimony will bind a wife who has been guilty of misconduct that would be ground for a separation or divorce, Domestic Relations Law, section 236, and to the extent that it fairly assesses the husband's financial obligation to the wife is binding upon a wife who has not been guilty of misconduct, it will not bar a wife not guilty of such misconduct when (i) the amount agreed upon is plainly inadequate, (ii) the wife is in danger of becoming a public charge, (iii) the agreement or stipulation is set aside for fraud or duress, or (iv) the agreement or stipulation is in violation of the General Obligation Law, section 5-311, as when it provides for a lump sum payment in satisfaction of the husband's support obligation, or provides for a lump sum plus weekly payments which are to continue for only a limited time. Moreover, as to support, custody and visitation, no such agreement or stipulation is binding. The court should not, by the use of the incorporation by reference device, either sanction an improper provision or permit a wife to be misled into believing such a provision to be valid. Accordingly, the judgment will ignore incorporation by reference language, but where the stipulation or agreement provides, or the testimony establishes that such was the intent of the parties, the judgment will state that the stipulation or agreement is not merged in but shall survive the judgment. In all such cases, a copy of the separation agreement or of the written stipulation must be marked in evidence and unless already on file with the County clerk the marked copy will be retained in the file, and the judgment will contain the "Separation Agreement or Stipulation" paragraph J13. The paragraph should be modified by dropping the words "support, custody or visitation" when there are no children, or dropping the word "alimony" in a case in which a wife has been guilty of conduct that would under Domestic Relations Law section 236 bar her right to alimony. Note, however, that when paragraph J13 alone is used, enforcement by contempt is not available, there being no mandate by the court that the agreement or stipulation be carried out by the parties. Therefore, the judgment may, if it is desired that contempt enforcement be available, include in addition to paragraph J13, the currently applicable requirements (but not the future requirements, see paragraph [5], following) of the stipulation or separation agreement covering alimony, support, custody and visitation, worded as indicated in paragraphs J6, J7, J9 and J10. If such provisions are not included and there is a default, application can be made for modification set forth the then currently applicable requirements of the stipulation or agreement, but in such an event contempt would only be an available enforcement procedure as to a default occurring after the modification.

(5) Provisions as to the future. A judgment speaks as of its date and is based on then existing facts. Escalator clauses and other provisions requiring a change in the future will nit be included in the judgment, therefore, until the event on which change predicated occurs. The exception id the case in which sake of the marital premises in the near future is contemplated and the court has fixed the amount by which support will be increased to cover rent, when the wife moves out of the marital premises. When the event on which change is predicated occurs, application may be made to modify the judgment to conform to the agreement provisions, but whether the judgment will be modified as requested upon the then existing circumstances. A refusal to modify will not affect the contract rights between the parties, but will make unavailable enforcement by contempt proceedings.

(6) Open-end payments and payments to third persons. Since the amount that can be awarded as alimony and support is limited by the husband's ability to pay, the judgment should award a specific sum and not direct that he pay indeterminate obligations or obligations that are subject to change by a third party. So, for example, when the wife is awarded exclusive possession of the marital residence, the sum awarded will be inclusive of mortgage interest, amortization and escrow payments and the judgment should so recite. If it is desired that the husband make payment directly to the lending institution, the judgment will direct that he pay a specified sum to the wife and an additional specified sum to the lending institution, and the judgment will have to be modified on motion or on stipulation to change the amount should be the lending institution increase the amount payable. Extraordinary medical or dental expenses or extraordinary house repairs are, however, exceptions to the rule that the judgment is the absolute limit of the husband's obligation. To make clear that the amount fixed by the court does not encompass such extraordinary expenses and that the determination of what falls in the category of "extraordinary" and how such expenses are to be borne by the parties may be made by the court after such an expense occurs, limiting language will be included in the judgment (see paragraphs J9 and J10).

(7) Arrears. Judgment for arrears under a temporary order may not be awarded unless demanded in the complaint or in a motion which has been referred to the trial court, or unless the pleadings are conformed to the proof. Note, however, that if defendant is in default, judgment may be awarded only for such relief as was demanded in the complaint, CPLR 3215 (b), and the pleadings in a default case may not be amended to seek a judgment for arrears, except on notice to or consent of the defendant.

(8) Legitimacy of children. No provision need be included in the judgment through the marriage be annulled or declared a nullity, see Domestic Relations Law, section 24 as amended effective April 30, 1969.

A review of the foregoing section indicates that much of today's "policy" was specifically set forth therein. Some policies have changed (incorporation by reference; applications to reduce arrears after entry of the judgment, etc.). However, the rule with respect to contempt has not changed at all. Indeed, in changing DRL § 244 to allow enforcement of the monetary provisions of an agreement incorporated by reference, the presumption is that there must be a "clear and unequivocal mandate of the court" before contempt will lie (see McKinney's Consolidated Laws of New York, book 1, "Statutes", Section 193, " Significance of Change in Language" and Section 240, " Expression of one thing as excluding others").

The mandatory paragraphs which must be used in preparing a Judgment of Divorce are referred to in 22 NYCRR 202.50, Appendix B. 22 NYCRR 202.50 reads in part as follows:

202.50. Proposed judgments in matrimonial actions; forms

(a) Form of judgments. Findings and conclusions shall be in a separate paper from the judgment, which papers shall be labeled "FINDINGS OF FACT AND CONCLUSIONS OF LAW" and "JUDGMENT", respectively. In an undefended action which has been referred to a referee, they shall be labeled "REFEREE'S REPORT OF FINDINGS OF FACT AND CONCLUSIONS OF LAW" and "JUDGMENT", respectively.

(b) Approved forms. The paragraphs contained in Chapter III, Subchapter B of Subtitle D (forms) of this Title, modified or deleted as may be necessary to conform to the law and facts in a particular action, SHALL be used in the preparation of "FINDINGS OF FACT AND CONCLUSIONS OF LAW", "JUDGMENT", or "REFEREE'S REPORT OF FINDINGS OF FACT AND CONCLUSIONS OF LAW". Parenthesize portions indicate alternative provisions.

(c) Judgments submitted to the court shall be accompanied by a completed form UCS 113 (Unified Court System Divorce and Child Support Summary Form: Supreme Court). (Emphasis Added)

The approved forms must be modified to suit the facts. However while paragraphs must be included in the judgment of divorce which address the more common or routine matters (maintenance, child support, visitation, etc.), other issues not addressed in the form paragraphs. The form paragraphs do not address every conceivable provision that parties include in agreements. Additional paragraphs should be included in the judgment of divorce "modified or deleted as may be necessary to conform to the law and facts in a particular action…." Does this mean that every provision in the agreement should be made into a decretal paragraph? No – but where you believe after having lived with the case that there will be trouble involving a particular provision, you should include a paragraph in the judgment of divorce which will allow you to move for contempt rather than being required to seek an order specifically directing or prohibiting a particular thing at the time of the violation (i.e., the mandate).

The requirement for a clear and unequivocal mandate in amply demonstrated in the case law governing contempt application, especially in the Appellate Division, Second Department. The rule, restated again and again, is that a defaulting party may only be held in contempt in accordance with DRL § 245, where there is a clear and unequivocal mandate of the court and clear and convincing proof of a violation. In GUERRIERE v GUERRIERE , 188 AD2d 583, 591 NYS2d 475 [Case 11], the court stated:

The defendant is correct in contending that he could not be held in contempt for his failure to continue the monthly payments. It is axiomatic that "to sustain a finding of … contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect" (Matter of Department of Envtl. Protection v Department of Envtl. Conservation, 70 NY2d 233, 240; see, Matter of McCormick v Axelrod, 59 NY2d 574; O'Hagan v O'Hagan, 187 AD2d 494; Graham v Graham, 152 AD2d 653). The finding of contempt in this case based upon the defendant's failure to comply with the divorce judgment is erroneous, inasmuch as that judgment did not contain any provision requiring him to continue payments for a specified period even if the lease were terminated. Moreover, while the July 14, 1987, agreement did contain such a provision, it was not set forth at length in the judgment, nor did the divorce judgment incorporate the relevant terms of the agreement by reference. Hence, the judgment did not express an unequivocal mandate that the defendant continue to pay "rent" once the lease was terminated, and the defendant could not be held in contempt for his failure to do so.

Where there is mere "incorporation by reference", there is always an issue of whether a covenant is dependent or independent, and therefore whether a particular provision must be complied with regardless of whether the other party is following the agreement (see SHEDLER v. SHEDLER , 12 NY2d 828, 236 NYS2D 348). For many years, the courts found that deprivation of visitation and payment of support were dependent. However, this policy was changed by the legislature as a result of it becoming a "standard" defense that resulted in children being deprived of support for long periods. Incorporation of a document in excess of fifty (50) pages which certainly doesn't indicate who must perform first or whether performance is required at all if the other party fails to perform some term or provision, doesn't supply a "clear and unequivocal mandate of the court". Indeed sometimes the court must determine whether a person is required to perform first, or even at all, based upon all of the various provisions in an agreement. If the court must first interpret the agreement it is unlikely to fund a willful violation since there must have been some doubt.

Over the years, courts started finding the "incorporation by reference" was sufficient to enforce by resort to a money judgement (DRL § 244), (see BAKER v BAKER , 66 NY2d 649 and the cases cited therein as exceptions), it is still the rule that incorporation by reference may not sustain a finding of contempt. The courts still distinguished between "incorporation by reference" for enforcement by resort to DRL § 244 and enforcement by resort to DRL § 245 before §244 was amended. In FISHKIN v FISHKIN , 201 AD2d 202, 615 NYS2d 899, the court indicated where granting a money judgment with incorporation of the agreement into a Judgment of Divorce, that such apparently different treatment than a similar case involving an application for contempt, should not be considered an inconsistency. The court stated:

"However, we are satisfied that the judgment of divorce in this case sufficiently incorporated by reference the terms of the parties' separation agreement so as to permit enforcement under Domestic Relations Law § 244, inasmuch as it specifically referred to the agreement, indicated that a copy thereof had been placed on file with the court, and expressed the court's intention and authority to enforce the terms of the agreement should such enforcement be warranted in the future. We note in this regard that to the limited extent some of our prior decisions might be interpreted as reaching a contrary result under similar facts (see, e.g., Guerriere v Guerriere, 188 AD2d 583; Matter of Neeley v Cuccia, 143 AD2d 671), they should not be so interpreted."

As indicated above, the distinction has since been codified in that the legislature amended DRL § 244 to permit enforcement of the monetary provisions of an agreement, while failing to make a similar modification to DRL § 245. InSUCHOMSKI v SUCHOMSKI , 73 A.D.2d 1038, 425 NYS2d 404 [Case 9], where there was incorporation of a separation agreement, the judgment was not found to be a clear mandate. The court stated:

The parties executed a separation agreement providing, inter alia, that plaintiff husband have sole and exclusive possession of the marital premises for himself and the children and that at his option when and if it is sold, the defendant shall share equally in the proceeds remaining after satisfaction of the existing mortgage. This agreement was incorporated but not merged in a subsequent uncontested divorce decree. The judgment contained an order adopting the language of the agreement reciting that the plaintiff shall have the option to sell the property at his discretion and when and if it is sold, the defendant shall share in the proceeds. When plaintiff negotiated a bona fide sale, defendant declined to execute the deed unless stated concessions were made. Plaintiff moved to punish defendant for civil contempt for her willful refusal to comply with the decree. In response, defendant asserted plaintiff's failure to account for rental receipts and inadequate consideration for the sale. Special Term found defendant to be in contempt and it is from that order that she appeals. Contempt may not be granted unless the judgment or order violated is clear and explicit, and unless the act complained of is clearly proscribed (Pereira v Pereira, 35 NY2d 301, 308; Busch v Berg, 52 AD2d <*pg.1039> 1082). The alleged contempt is the failure of the defendant to execute a deed to effect a transfer of premises. We do not find in the order of the court a mandate with sufficient clarity to warrant the contempt proceeding based on the failure to comply. Accordingly, this matter is remitted to Special Term for a plenary hearing on contempt of the existing order or application for an unequivocal order (Paine, Webber, Jackson & Curtis v Pioneer Warehouse Corp., 61 AD2d 756). (Appeal from order of Onondaga Supreme Court ─ contempt.) (Emphasis Added)

It is impossible to utilize the paragraphs in "Appendix B" to cover every aspect of and situation in every case where you believe there is a potential dispute; that is why the language " modified or deleted as may be necessary to conform to the law and facts in a particular action, SHALL be used in the preparation of " is included in 22 NYCRR 202.50. The rule contemplates both changes and additions to the paragraphs contained in "Appendix B".

While the rules were changed when the Uniform Rules for the New York State Trial Courts mandated the repeal of the rules in the Second Department (22 NYCRR 699.9), the test as to whether a judgment or order is sufficient to sustain a finding of contempt has not. When there is a risk of incarceration, the language of the order must meet the most stringent standards of exactness. The mandate of the court must be clear, explicit, and unequivocal as to the conduct that is the subject of the application. Mere incorporation by reference is not sufficient. The question that defeats contempt is "may a party avoid a particular 'contract' requirement because the other party is failing to perform some act mandated by the same contract?" Perhaps; and the answer "perhaps" is not the correct answer where the punishment may be incarceration. If one is unsure of whether a party is absolutely proscribed from doing an act, or absolutely required to do an act because of the language of the order or judgment, one can be very sure that contempt is not one of the remedies that may be granted.

The rules for contempt in a matrimonial actions are really no different than in any other action or proceedings. In a matrimonial proceedings wherein contempt is sought on a judgement of divorce, the most definitive statement was made by the Appellate Division, Second Department in FILIPPINI V FILIPPINI, 104 A.D.2D 787, 480 NYS2d 41, wherein the court stated:

The separation agreement clearly manifests an intent on the part of both parties that its provisions would become part of the final judgment. However, because the pertinent terms of the agreement were not specifically recited in the decretal portion of the judgment, there was no judicial mandate that the terms of the agreement be carried out by the parties and, therefore, enforcement by contempt was not available (22 NYCRR 699.9 [f] [4]). In order to ensure that contempt would be available to enforce the parties’ obligations covering support, custody and visitation under the separation agreement, the judgment was properly amended to specifically set forth the currently applicable requirements of the agreement (22 NYCRR 699.9 [f] [4]). Furthermore, specific provisions of the separation agreement which the parties may seek to modify in the Supreme Court or the Family Court should be included in the decretal provisions of the final judgment of divorce (Cohn v. Cohn, 100 AD2d 528, 530).

Yet, with respect to an order being specific, the rule is the same in any proceedings. In McCAIN

v DINKINS [84 NY2d 216, 616 NYS2d 335] Court of Appeals stated:

To sustain a civil contempt, a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed (see, e.g., Pereira v Pereira, 35 NY2d 301, 308; Matter of Spector v Allen, 281 NY 251, 259; Ketchum v Edwards, 153 NY 534, 539; Coan v Coan, 86 AD2d 640, 641, appeal dismissed 56 NY2d 804). Moreover, the party to be held in contempt must have had knowledge of the order, although it is not necessary that the order actually have been served upon the party (e.g., People ex rel. Stearns v Marr, 181 NY 463, 470, supra). In addition, prejudice to the rights of a party to the litigation must be demonstrated (see, Judiciary Law 753 [A]; Matter of McCormick v Axelrod, 59 NY2d 574, supra).

Whenever a party violates a court order, everyone wishes that the punishment, designed to coerce a party into compliance, is swift and compelling. The court looks better, the system looks better and you look better. The punishment, when it includes incarceration, is severe. However, a party is always said to " have the key to the prison" in a civil contempt proceedings. The punishment is designed to have something accomplished (or to have something stopped). Only in a criminal contempt proceedings is the sentence deemed punishment rather than coercion. However, the court's have said over and over again that there must be "a clear and unequivocal mandate of the court". There must be clear and convincing proof that the party against whom contempt is sought had knowledge of the order or judgment and there must be clear and convincing proof presented of a violation of that order or judgment. Few provisions in a separation agreement provide the kind of clarity that can be described as a "mandate". The language must include words such as "must", "shall" or other unequivocal language that does not allow for interpretation. The language must not allow one to say that the entire agreement must be viewed as a whole. A party should not be able to say "where does it say that I must do something, or refrain from doing something, when the other party refuses to comply with the agreement". Only a specific paragraph in an order provides the required "clarity".

In summary, whenever you believe that the parties "will be back", you must put "clear and unequivocal mandates" into the judgment of divorce. This frequently means modifying the language in the agreement. Language such at "The parties agree that they shall…" cannot be lifted from the agreement and simply put into a judgment of divorce. A judgment directing the parties to agree to something is at best unenforceable, and at worst puts the drafter and the court in a poor light. Worse yet, when the drafter is force to move for contempt, and must first make a motion to obtain an order with the necessary clarity to be granted contempt, the drafter may have to explain to his client why it occurred. Therefore, you must modify the language in the agreement to give you the clarity and mandate necessary for contempt.