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

66
CA 11-00495
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.


ARDA MAKARCHUK, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

EDWARD MAKARCHUK, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LEVITT & GORDON, ESQS., NEW HARTFORD (DEAN L. GORDON OF COUNSEL), FOR
DEFENDANT-APPELLANT.


     Appeal from a judgment of the Supreme Court, Oneida County
(Samuel D. Hester, J.), entered October 27, 2010. The judgment
awarded plaintiff the sum of $53,869.16 plus interest against
defendant.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating that part awarding
plaintiff the sum of $9,494.43 plus prejudgment interest thereon and
as modified the judgment is affirmed without costs.

     Memorandum: As we noted when this case previously was before us
on appeal (Makarchuk v Makarchuk, 59 AD3d 1094), plaintiff commenced
this action in 2006 seeking to enforce defendant’s obligation to pay
carrying costs, i.e., taxes, insurance, and most of the maintenance
costs, on the marital residence pursuant to a separation agreement
(agreement) executed by the parties in 1970. The agreement provided
that it would “survive any decree of divorce . . . [and would] not
merge in[ ] nor be superseded by any divorce decree or judgment.” As
we further noted, the decree of divorce entered in 1971 expressly
incorporated the agreement but did not contain a nonmerger clause.
The decree was modified in 1975 by Supreme Court (John R. Tenney, J.),
who ordered that defendant was no longer responsible for paying the
carrying costs on the marital residence (hereafter, 1975 order). On
the prior appeal, we agreed with plaintiff that Supreme Court (Robert
F. Julian, J.) erred in granting that part of defendant’s motion
seeking to dismiss the complaint for breach of contract, concluding
that “plaintiff retained the right to enforce the agreement
notwithstanding the 1975 order modifying the decree” (id. at 1095).
We therefore reversed the order, denied the motion in its entirety,
and reinstated the complaint.

     After the complaint was reinstated, defendant moved by order to
show cause to find plaintiff in contempt for “violating the terms and
conditions of [the 1975 order] by seeking to compel [him] to pay
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                                                         CA 11-00495

exactly the expenses which were excused by [that order].” Defendant
further sought “to enforce” the 1975 order, thereby precluding
plaintiff’s breach of contract action. Supreme Court (Samuel D.
Hester, J.) reserved decision and, after a nonjury trial, denied
defendant’s application to hold plaintiff in contempt and awarded
plaintiff the sum of $53,869.16 in damages plus interest. In appeal
No. 1, defendant appeals from the judgment enforcing his obligation to
pay carrying costs on the marital residence pursuant to the parties’
agreement and awarding damages to plaintiff in the amount of such
costs, plus prejudgment interest, costs and disbursements. In appeal
No. 2, defendant appeals from the order that, inter alia, denied his
application to hold plaintiff in contempt.

     Addressing first the order in appeal No. 2, we reject defendant’s
contention that the court erred in refusing to hold plaintiff in
contempt of the 1975 order for the same reasons we articulated on the
prior appeal, which constitutes the law of the case (see generally
Johnson v Optometrix, Inc., 85 AD3d 1542, 1544, lv denied 17 NY3d
710). As we previously noted, “[i]t is well settled that ‘[a]
separation agreement that is incorporated into but not merged with a
divorce decree is an independent contract binding on the parties
unless impeached or challenged for some cause recognized by law’ ”
(Makarchuk, 59 AD3d at 1094, quoting Merl v Merl, 67 NY2d 359, 362).
Where, as here, a separation agreement is incorporated but not merged
in a divorce decree, “a change in the divorce decree cannot modify the
separation agreement absent a clear expression by the parties of such
an intent” (Kleila v Kleila, 50 NY2d 277, 283), and no such intent was
expressed here (Makarchuck, 59 AD3d at 1094-1095). Plaintiff thus
retained the right to enforce the agreement with respect to the
carrying costs by way of a plenary action for breach of contract (see
Makarchuk, 59 AD3d at 1094-1095; see also Kleila, 50 NY2d at 283).
Contrary to defendant’s further contention, we conclude that the
judgment in appeal No. 1 does not violate the 1975 order because the
judgment enforces the terms of the agreement, which was not modified
by the 1975 order.

     With respect to appeal No. 1, we reject defendant’s contention
that plaintiff breached the agreement by “entertaining males” and that
such breach excused his failure to pay the carrying costs on the
marital residence. Initially, we agree with the court that
defendant’s contention that he was excused from his obligations under
the agreement based on that alleged breach by plaintiff “is
essentially a claim based on a breach of contract, which occurred in
1975 and thus is barred by the six year statute of limitations” (see
generally CPLR 213 [2]). In any event, we likewise agree with the
court that defendant failed to establish by a preponderance of the
evidence that plaintiff breached the agreement by “entertaining males”
(see Famoso v Famoso, 267 AD2d 274, 274-275; Lefkon v Drubin, 143 AD2d
400, lv dismissed 74 NY2d 791, lv denied 74 NY2d 612; see generally
Graev v Graev, 11 NY3d 262).

     We agree with defendant, however, that the court erred in
applying tenancy-in-common principles to the agreement, and thus erred
in awarding plaintiff one half of the maintenance costs. Upon entry
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                                                        CA 11-00495

of the divorce decree, the parties’ tenancy by the entirety in the
marital residence converted to a tenancy in common as a matter of law
(see Goldman v Goldman, 95 NY2d 120, 122; Kahn v Kahn, 43 NY2d 203,
207). “The distinguishing feature of [a tenancy-in-common] is the
right of each cotenant to use and enjoy the entire property as would a
sole owner . . . whether or not they are in actual possession of the
premises” (Butler v Rafferty, 100 NY2d 265, 269). Generally,
“[a]bsent an ouster, tenants-in-common equally bear the costs incurred
in maintaining the property” (Degliuomini v Degliuomini, 45 AD3d 626,
629; see McIntosh v McIntosh, 58 AD3d 814, 814-815). However, the
general rules governing tenancies-in-common “ ‘will not control where
there is a contrary agreement’ ” (Butler, 100 NY2d at 270). Here, the
agreement in question in fact departed from the general rules
governing tenancies-in-common by granting plaintiff exclusive use of
the marital residence, except for storage in the garage and basement,
and by directing defendant to be solely responsible for maintenance
costs, with the exception of “grass cutting and snow removal” as well
as “fuel and utilities.” Thus, the court erred in awarding plaintiff
$9,494.43, representing one half of the maintenance costs, and we
therefore modify the judgment in appeal No. 1 accordingly.




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
