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 Defendant’s Sur-
Reply Affidavit and Exhibits..................................................x

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

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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

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obligation to the Children. 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.

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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
of the worse [sic] industries in the country, the
mortgage industry.

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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:

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

Road?

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
on the needs at different times of the year, parts
of the gardening,
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.

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 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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