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

573
CA 13-00220
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


TIMOTHY D. GAY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MARIA GAY, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


MELVIN & MELVIN, PLLC, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A.
CIRANDO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

MACHT, BRENIZER & GINGOLD, P.C., SYRACUSE (JON W. BRENIZER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (Kevin
G. Young, J.), entered March 29, 2012 in a divorce action. The order,
among other things, directed plaintiff to cooperate with defendant
regarding a life insurance policy on plaintiff’s life and ordered both
parties to name their children as beneficiaries on their existing life
insurance policies.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by providing that the parties’
obligation to maintain life insurance naming the children as
beneficiaries ceases upon the termination of their respective child
support obligations, and as modified the order is affirmed without
costs.

     Memorandum: In appeal No. 1, plaintiff appeals from an order
that, inter alia, directed him to cooperate with defendant regarding a
life insurance policy on plaintiff’s life, and ordered both parties to
name the children as beneficiaries on their existing life insurance
policies. In appeal No. 2, plaintiff appeals from an order that,
inter alia, denied his motion for leave to renew and/or reargue, and
granted defendant’s request for attorney’s fees. In appeal No. 3,
plaintiff appeals from an order that, inter alia, directed him to sign
any and all authorizations and/or forms necessary to name the parties’
children as beneficiaries of his existing life insurance policy, and
to cooperate with defendant in obtaining life insurance on his life.
In appeal No. 4, plaintiff appeals from an order granting defendant’s
further request for attorney’s fees incurred in opposing a subsequent
motion by plaintiff to hold defendant in contempt. Finally, in appeal
No. 5, plaintiff appeals from a letter decision advising that the
court intended defendant to be the owner of the insurance policy on
plaintiff’s life. We note at the outset that we dismiss the appeal
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                                                         CA 13-00220

from the order in appeal No. 2 to the extent that it denied leave to
reargue (see Empire Ins. Co. v Food City, 167 AD2d 983, 984), and we
dismiss appeal No. 5 inasmuch as “ ‘[n]o appeal lies from a mere
decision’ ” (Meenan v Meenan, 103 AD3d 1277, 1277).

     In appeal Nos. 1, 2 and 3, plaintiff contends that Supreme Court
erred in ordering him to cooperate with defendant in procuring an
insurance policy on his life for the benefit of defendant because the
parties did not agree to the imposition of such an obligation, nor did
they intend to impose one. We reject that contention. It is well
settled that “[a]n oral stipulation of settlement that is made in open
court and stenographically recorded is enforceable as a contract and
is governed by general contract principles for its interpretation and
effect” (Argento v Argento, 304 AD2d 684, 684-685; see Attea v Attea,
30 AD3d 971, 972, affd 7 NY3d 879; De Gaust v De Gaust, 237 AD2d 862,
862). “The role of the court is to determine the intent and purpose
of the stipulation based on the examination of the record as a whole”
(Argento, 304 AD2d at 685; see Walker v Walker, 42 AD3d 928, 928, lv
dismissed 9 NY3d 947; De Gaust, 237 AD2d at 862). “Where the
intention of the parties is clearly and unambiguously set forth,
effect must be given to the intent as indicated by the language used”
(Ayers v Ayers, 92 AD3d 623, 624; see Rainbow v Swisher, 72 NY2d 106,
109). “Whether a [contract] is ambiguous is a matter of law for the
court, and the proper inquiry is whether the agreement on its face is
reasonably susceptible of more than one interpretation” (Ayers, 92
AD3d at 625 [internal quotation marks omitted]).

     Here, plaintiff acknowledges that the parties’ oral stipulation,
which was incorporated but not merged in the judgment of divorce,
provides that defendant may purchase insurance on plaintiff’s life.
He contends, however, that the parties agreed that the children, not
defendant, would be the beneficiaries of any such policy. We reject
that contention. In support thereof, plaintiff relies upon the
statements of counsel prior to an off-the-record conversation,
specifically, the statement of defendant’s attorney that “I didn’t say
anything about the spouse. I said the children only.” That
statement, however, is taken out of context. Plaintiff’s attorney
began the discussion about life insurance by stating that both parties
possessed life insurance policies, and that each party would retain
his or her respective policy as separate property “free and clear from
any and all claims” of the other party. After a discussion about
child support, defendant’s attorney asked plaintiff’s attorney whether
the parties were “going to merge their life insurance for the children
as beneficiary till they’re twenty-one,” and plaintiff’s counsel
replied, “No. That wasn’t discussed.” After further discussion,
plaintiff’s counsel stated that, in the absence of an agreement, the
parties could still “nam[e] their children as beneficiaries. There’s
no need to name the other spouse.” Defendant’s counsel replied:
“Judge, I didn’t say anything about the spouse. I said the children
only.” The record thus establishes that counsel’s statements
pertained to the parties’ existing life insurance policies and whether
the children would be named as beneficiaries on those policies to
secure the parties’ respective child support obligations (see Domestic
Relations Law § 236 [B] [8] [a]).
                                 -3-                           573
                                                         CA 13-00220

     After an off-the-record discussion and the discussion of an
unrelated issue, the parties returned to the issue of life insurance,
and agreed that, if “[defendant] wants to take out term insurance on
[plaintiff], [plaintiff] will cooperate with any necessary paperwork
to do that,” provided that it was at “no cost or expense to him.”
Defendant’s counsel agreed that defendant would “pay for it.” Unlike
the earlier discussion about naming the children as beneficiaries on
the parties’ existing life insurance polices, the parties’ agreement
clearly contemplates a new policy not in existence at the time of the
stipulation. The new policy would be a term life insurance policy as
opposed to the parties’ existing, permanent whole life policies.
Although plaintiff is correct that the parties did not explicitly
state that defendant would be the owner and beneficiary of the new
policy, we conclude that, upon “examin[ing] the entire contract and
consider[ing] the relation of the parties and the circumstances under
which the contract was executed” (Ayers, 92 AD3d at 625), the only
reasonable interpretation of the stipulation is that the new insurance
policy was for defendant’s benefit.

     We thus conclude, with respect to appeal Nos. 1 and 3, that the
court did not err in ordering plaintiff “to cooperate with the
Defendant regarding the life insurance policy on the Plaintiff’s life,
naming the Defendant as beneficiary there[of],” and, with respect to
appeal No. 2, that the court did not err in denying that part of
plaintiff’s motion for leave to renew that issue.

     Plaintiff further contends in appeal No. 1 that the court erred
in requiring the parties to name their children as beneficiaries on
their existing life insurance policies. We reject that contention.
“Domestic Relations Law § 236 (B) (8) (a) authorizes an order
directing the purchase of an insurance policy on the life of either
spouse in order to protect maintenance and child support recipients”
(Holterman v Holterman, 307 AD2d 442, 443, affd 3 NY3d 1, citing
Hartog v Hartog, 85 NY2d 36, 50; see Wilbur v Wilbur, 116 AD2d 953,
955). The decision “whether to direct the maintenance of a life
insurance policy pursuant to this statutory provision lies within the
discretion of the court” (Wilbur, 116 AD2d at 955; see Hartog, 85 NY2d
at 50). Contrary to plaintiff’s contention, we conclude that the
court properly required both parties to name the children as
beneficiaries on their individual life insurance policies in order to
secure their respective child support obligations (see Martin v
Martin, 115 AD3d 1315, 1316; Gately v Gately, 113 AD3d 1093, 1094;
Kelly v Kelly, 19 AD3d 1104, 1107, appeal dismissed 5 NY3d 847,
reconsideration denied 6 NY3d 803). We agree with plaintiff’s
alternate contention, however, that the life insurance obligation must
cease upon termination of the child support obligation (see § 236 [B]
[8] [a]; Ciampa v Ciampa, 47 AD3d 745, 748; see generally Kelly, 19
AD3d at 1107). We therefore modify the order in appeal No. 1
accordingly.

     Finally, we conclude with respect to appeal Nos. 2 and 4 that
the court did not abuse its discretion in ordering plaintiff to pay a
portion of defendant’s counsel fees (see Zufall v Zufall, 109 AD3d
                                 -4-                           573
                                                         CA 13-00220

1135, 1138, lv denied 22 NY3d 859; Reed v Reed, 55 AD3d 1249, 1252).
The decision to award counsel fees in a matrimonial action is a matter
committed to the discretion of the trial court (see DeCabrera v
Cabrera-Rosete, 70 NY2d 879, 881; Zufall, 109 AD3d at 1138) and, “in
exercising its discretionary power to award counsel fees, a court
should review the financial circumstances of both parties together
with all the other circumstances of the case, which may include the
relative merit of the parties’ positions” (DeCabrera, 70 NY2d at 881).
We note that, of the multiple motions and cross motions in this
matter, the court awarded defendant counsel fees only in connection
with plaintiff’s motion for leave to renew/reargue, which we conclude
lacked merit. Otherwise, the court denied both parties’ applications
for counsel fees in connection with each of the postjudgment motions.




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
