        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

730
CA 14-01011
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


CHRISTOPHER J. COLELLA, PLAINTIFF-APPELLANT

                    V                             MEMORANDUM AND ORDER

JAMIE L. COLELLA, DEFENDANT-RESPONDENT.


SAMUEL P. GIACONA, AUBURN, FOR PLAINTIFF-APPELLANT.

RALPH G. DEMASI, SYRACUSE, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Cayuga County (Elma A.
Bellini, J.), entered March 14, 2014 in a divorce action. The order
denied the motion of plaintiff seeking an order directing defendant to
pay him half of the money defendant saved on her income taxes since
2008 as a result of receiving child tax credits for their two
children.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, and the matter is
remitted to Supreme Court, Cayuga County, for further proceedings in
accordance with the following memorandum: In this postjudgment
matrimonial proceeding, plaintiff moved for an order directing
defendant, his ex-wife, to pay him half of the money she saved on her
income taxes since 2008 as a result of receiving child tax credits for
their two children. According to plaintiff, he was entitled to share
equally in the child tax credits pursuant to Article XIX (E) of the
parties’ separation agreement, which was incorporated but not merged
into the judgment of divorce. Following a limited fact-finding
hearing, Supreme Court denied plaintiff’s motion, finding that, under
the unambiguous terms of the separation agreement, plaintiff is not
entitled to share in the child tax credits. We conclude that the
disputed provision is ambiguous, and we therefore reverse the order
and remit the matter to Supreme Court for a hearing to determine the
parties’ intent with respect thereto.

     It is well settled that “[t]he fundamental, neutral precept of
contract interpretation is that agreements are construed in accord
with the parties’ intent . . . [, and t]he best evidence of what the
parties . . . intend is what they say in their writing” (Greenfield v
Philles Records, 98 NY2d 562, 569 [internal quotation marks omitted]).
“[A] written agreement that is complete, clear and unambiguous on its
face must be enforced according to the plain meaning of its terms”
(id.; see Hall v Paez, 77 AD3d 620, 621). Therefore, courts may
consider extrinsic or parol evidence of the parties’ intent only if
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                                                         CA 14-01011

the contract is ambiguous (see Boster-Burton v Burton, 73 AD3d 671,
673). In determining whether a contract is ambiguous, a court
considers whether the contract “on its face is reasonably susceptible
of more than one interpretation” (Chimart Assoc. v Paul, 66 NY2d 570,
573; see St. Mary v Paul Smith’s Coll. of Arts & Sciences, 247 AD2d
859, 859).

     Here, Article XIX (E) of the separation agreement reads:
“Commencing with the 2008 tax year the Wife shall share with the
Husband fifty percent of any child tax credit, or any such similar tax
credit not based upon income or payments that the [W]ife may have made
by or on behalf of a child, that she may receive relating to the
filing of her federal and state income tax returns after 2008. The
Wife shall also share with the Husband fifty percent of any future
economic stimulus or any similar such payment she may receive as a
result of her claiming the children on her federal income tax return.”

     The court concluded that the above provision unambiguously
provides that plaintiff is not entitled to share in any child tax
credits where the amount of such credit is based on defendant’s
income. Because it was unclear from the motion papers whether the
child tax credits received by defendant were based on her income, the
court conducted a hearing on that limited issue. The court rejected
plaintiff’s contention that the provision itself was ambiguous, and
therefore precluded him from offering evidence regarding the parties’
intent with respect to the provision. At the hearing, plaintiff’s
expert witness, a certified public accountant, acknowledged that,
under the federal tax code, the amount of a child tax credit depends
upon the income of the recipient taxpayer. The court therefore denied
plaintiff’s motion.

     We agree with plaintiff that Article XIX (E) of the separation
agreement is ambiguous because it is reasonably susceptible of more
than one interpretation. Given the placement of the comma in the
first sentence, one could reasonably interpret the provision as
allowing plaintiff to share equally in the child tax credit regardless
of whether it is based on defendant’s income, and also share equally
in “any such similar tax credits”—such as those for child care
expenses—that are not based on defendant’s income or payments she made
on behalf of the children. The provision could also reasonably be
interpreted as allowing plaintiff to share in any tax credits received
by defendant except those that are based on money, i.e., “income or
payments,” she expended on behalf of the children.

     In fact, plaintiff’s interpretation appears more reasonable than
that proffered by defendant, pursuant to which plaintiff is not
entitled to share in the child tax credits because they are based on
defendant’s income. The amount of basic child tax credit is, indeed,
always dependent on the income of the person claiming the credit.
Thus, pursuant to the court’s interpretation of the provision,
plaintiff would never share in the child tax credit and, if that were
the case, there would have been no need for the first phrase of the
first sentence, i.e., “Commencing with the 2008 tax year the Wife
shall share with the Husband fifty percent of any child tax credit.”
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                                                         CA 14-01011

     We also note that defendant’s own attorney, in a letter sent to
opposing counsel approximately two years before this proceeding was
commenced, acknowledged that plaintiff was entitled to share in the
child tax credits. Although defendant later disavowed that apparent
concession, the fact that defendant’s attorney, who represented her in
the divorce, thought that plaintiff was entitled to half of the child
tax credits tends to show that plaintiff’s interpretation of the
separation agreement is not unreasonable.




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
