Not according to Richmond County Civil Court Judge (and Acting Suprme Court Justice) Philip S. Straniere, seemingly running afoul of a contrary body of case law, particularly in the Second Department.
Small Claims Court proceedings may well be the only practical way to redress relatively modest, but often important breaches of divorce settlement agreements as to matters of support and property. Such proceedings are quick, inexpensive, can be pursued without lawyers, and do substantial justice. Eliminating Small Claims Court as a proper forum for such relief would often leave parties without a reasonable remedy.
In his February 19, 2014 decision in Pivarnick v. Pivarnick, Judge Strainiere, held that Small Claims Court was without subject matter jurisdiction to enforce a divorce settlement agreement.
Doing so, he vacated an arbitrator’s $4,000 award to an ex-wife for counsel fees she incurred in connection with her submission to the Supreme Court of a proposed Qualified Domestic Relations Order to implement a division of the ex-husband’s pension and her defense of the ex-husband’s motion to dismiss that proposed QDRO. The ex-wife had cross-moved for sanctions “in the form of ‘attorneys’ fees for his engagement in frivolous conduct.’” Those post-divorce Supreme Court submissions were resolved by a so-ordered stipulation under which the entitlement of the ex-wife to share in the ex-husband’s pension was restated. No reference in the stipulation was made to the wife’s “attorneys’ fee claim” by cross-motion.
Thereafter, the ex-wife sought her counsel fees in Small Claims Court. The arbitrator had awarded the claimant legal fees in the amount of $4,000.00 and dismissed the defendant’s counterclaim for his own counsel fees.
The ex-husband then moved to vacate the award on the ground that the issue had been resolved previously in Supreme Court and that the small claims part lacked subject matter jurisdiction.
Vacating the award, and hold that the court was without subject matter jurisdiction, Judge Straniere held that relief could only be granted by either the Supreme or Family Courts. That conclusion was based upon the language of the parties’ divorce settlement agreement that any modification of any judgment or order incorporating the terms of the agreement should be to a “Court of competent jurisdiction” for that purpose.
The parties’ Judgment of Divorce contained the routine incorporation by reference provision. There it was:
ORDERED AND ADJUDGED that the Settlement Agreement entered into between the parties on the 23rd day of November, 1999, the original of which is filed herewith, shall survive and shall not be merged into this Judgment, and this Court shall retain jurisdiction of this matter, concurrently with the Family Court, for the purpose of specifically enforcing such of the provisions of that Agreement as are capable if specific enforcement, or, to the extent permitted by law of making such further decree with respect to maintenance, child support, custody or visitation as it finds appropriate under the circumstances existing at the time such an application for that purpose is made to the Court, or both, . . .
This language is taken from a standard provision of form judgments of divorce found at the end of Appendix B to Part 202 of the Uniform Rules for the N.Y.S. Trial Courts.
Judge Straniere held this language “restricted all claims arising from the matrimonial action to the Supreme Court or the Family Court. The reason for this is obvious. Those courts have the experience and mandate to deal with the myriad issues that arise in matrimonial disputes. Both those allegations articulated in the pleadings and those non-legal issues that often motivate parties in matrimonials to resort to the court system are best handled in Supreme Court and Family Court.”
Judge Straniere went on to hold that “therefore the issue of whether the claimant was entitled to be reimbursed for legal fees incurred in responding to defendant’s order to show cause in the Supreme Court had to be addressed in the Supreme Court or the Family Court if applicable. The small claims part lacked the subject matter jurisdiction to entertain the claimant’s application no matter at what stage such a claim was made. The fact that the parties agreed to have the issue heard by an arbitrator did not confer upon the small claims court the subject matter jurisdiction to resolve the dispute.”
However, Judge Straniere overlooked that body of case law that divorce settlement agreements that survive the entry of the divorce judgment, and do not merge into that judgment, may be enforced as independent contracts in any court that has jurisdiction to resolve contract disputes.
Thus, in Milman v. Milman, 131 A.D.2d 826, 517 N.Y.S.2d 186 (1987), the Second Department held where the parties entered into a separation agreement which was thereafter incorporated, but not merged, into a judgment of divorce, the separation agreement continued in effect as a separate and independent contractual arrangement between the parties. On appeal, the ex-husband contended that the action was one for a declaratory judgment action seeking “to delineate the rights, duties and obligations of the parties arising out of the marital relationship” and, as such, the action should have been transferred to the Supreme Court, Kings County. However, the Second Department held that it was clear that the action was one to recover damages for breach of a contract, i.e., the separation agreement which creates obligations separate and distinct from the divorce judgment, and the action was properly before the Civil Court of the City of New York, Kings County.
Similarly, it was held by White Plains City Court Judge Andrew K. Brotmann in Stewart v. Stewart, 190 Misc. 2d 438, 439, 738 N.Y.S.2d 536 (2002) that while a city court does not have subject matter jurisdiction over the enforcement of a divorce decree, “where the provisions of a separation agreement survive the final judgment of divorce and were not merged into the final judgment, a city court does have jurisdiction to adjudicate the claim. (Oechslin v Oechslin, 141 Misc 2d 1047 [Nassau Dist Ct 1988].)”
Leaving ex-spouses without access to a court to efficiently address modest support and property issues would work a serious injustice. Access to Small Claims Court should be validated.
The ex-husband was represented by Lisa Giovinazzo, of Staten Island. The ex-wife represented herself.