Robert G. Smith, PLLC

16 Years of "Mere Silence" Eradicates A $ 53,312 Spousal Maintenance Obligation

In an interesting  case titled Makris v. Makris, decided on January 8, 2020, a New York appellate Court has employed the waiver doctrine to retroactively vacate a former husband's  $ 53,312 spousal maintenance obligation.

The litigants were married with two children, and divorced in 1998.  The New York divorce judgment obligated the husband to pay both child support and spousal maintenance.   Alleging the existence of an oral agreement dating back to June 2001, the husband had stopped paying spousal maintenance in June 2001.  In August 2017, presumably when the child support obligation terminated, the wife hauled the husband into Family Court to collect 16 years' of allegedly unpaid spousal maintenance, which had by then grown to $ 53,312.   The husband thereafter filed a court petition to retroactively terminate the spousal maintenance obligation.  No doubt faced with a classic "he said - she said" conflict, not supported or refuted by any documentary evidence, the Support Magistrate found the husband's testimony to be credible and prospectively vacated the spousal maintenance obligation.  But the Support Magistrate did not retroactively vacate the  $ 53,312 spousal maintenance arrears.

As all first year law students learn, a waiver is the voluntary relinquishment of a known legal right.  New York law also holds that a waiver cannot be inferred from "mere silence".  In the Makris case, the New York appellate court has held that 16 years of silence is not  "mere silence".

There is nothing in the appellate court's published decision to suggest that Mr. Makris had suffered any adverse change in his financial circumstances.  The court used "mere silence" to retroactively vacate the $ 53,312 spousal maintenance obligation, holding that the husband had "good cause" under the New York statute Domestic Relations Law Section 236(B)(9)(b) not to previously attack the spousal maintenance obligation until 2017, after the wife had taken him to court to enforce it.  The stretch of that statutory language might open the door to authorize the husband's delay; but it does not address a Court's statutory authority to nullify an official court judgment without considering whether an adverse change of circumstances had occurred. 

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