We have repeatedly held that oral stipulations do not comply with the statute (seeMcGovern v. McGovern , 186 A.D.3d 988, 989, 129 N.Y.S.3d 558 [4th Dept. 2020] ; Keegan v. Keegan , 147 A.D.3d 1417, 1418, 46 N.Y.S.3d 760 [4th Dept. 2017] ; Lewis v. Lewis , 70 A.D.3d 1432, 1433, 894 N.Y.S.2d 290 [4th Dept. 2010] ). Although the First and Second Departments have held differently (seeOstolski v. Solounias , 55 A.D.3d 889, 890, 867 N.Y.S.2d 465 [2d Dept. 2008] ; Storette v. Storette , 11 A.D.3d 365, 365, 784 N.Y.S.2d 34 [1st Dept. 2004] ), the Third Department has agreed with our position (seeBirr v. Birr , 70 A.D.3d 1221, 1222-1223, 895 N.Y.S.2d 252 [3d Dept. 2010] ), thus creating an even split at the Appellate Division level on that issue. We note that the Court of Appeals has written that "the unambiguous statutory language of section 236 (B) (3), its history and related statutory provisions establish that the Legislature did not mean for the formality of acknowledgment to be expendable" ( Matisoff v. Dobi , 90 N.Y.2d 127, 135, 659 N.Y.S.2d 209, 681 N.E.2d 376 [1997] ).
Nor did Supreme Court err in failing to enforce a stipulation entered into by the parties during the course of a separate Family Court proceeding whereby the husband agreed to pay the wife $500 a month during the pendency of this action. “[W]ithout proof in the record of a valid opt-out agreement as required by Domestic Relations Law § 236(B)(3) , the oral stipulation is unenforceable” in the context of this matrimonial action (Birr v. Birr, 70 A.D.3d 1221, 1223, 895 N.Y.S.2d 252 2010; see Harbour v. Harbour, 243 A.D.2d 947, 949, 664 N.Y.S.2d 135 1997, lv. dismissed 92 N.Y.2d 845, 677 N.Y.S.2d 74, 699 N.E.2d 434 1998; Timperio v. Timperio, 232 A.D.2d 857, 859, 648 N.Y.S.2d 773 1996 ). Finally, considering “the financial circumstances of both parties together with all the other circumstances of the case” (Johnson v. Chapin, 12 N.Y.3d at 467, 881 N.Y.S.2d 373, 909 N.E.2d 66 [internal quotation marks and citations omitted]; see Domestic Relations Law § 237[a] ), we find that Supreme Court providently exercised its discretion in directing the husband to contribute $5,000 towards the wife's counsel fees (see Roberto v. Roberto, 90 A.D.3d 1373, 1376–1377, 936 N.Y.S.2d 337 2011; Johnson v. Chapin, 49 A.D.3d at 361–362, 854 N.Y.S.2d 18).
Here, because the record does not include a copy of the transcript of the agreement made in open court and the husband's affidavit does not indicate why the agreement was unfair or unconscionable at the time it was made, we have no basis to question its validity (see Etzel v. Etzel, 22 A.D.3d 906, 908, 803 N.Y.S.2d 219 [2005] ). We can conclude, however, that by duly executing an affidavit of appearance and adoption of oral stipulation on the day of the inquest, which affidavit states that the parties were adopting their oral stipulation “as if the same were fully set forth herein,” the parties complied with Domestic Relations Law § 236(B)(3) (see Birr v. Birr, 70 A.D.3d 1221, 1223, 895 N.Y.S.2d 252 [2010] ; Cheruvu v. Cheruvu, 59 A.D.3d 876, 877, 874 N.Y.S.2d 296 [2009] ). At oral argument, counsel for both parties acknowledged that no attempt was made to obtain the transcript.
Initially, the attorneys for the children contend that this Court should decline jurisdictionon the ground that all of the children now reside in Tennessee with their respective fathers pursuant to Family Court's orders, while the mother—a New York resident when these proceedings were commenced—allegedly no longer resides in this state. However, the claim that the mother has left New York is made solely in the briefs, is not included in the record and is thus beyond our consideration ( see Birr v. Birr, 70 A.D.3d 1221, 1223, 895 N.Y.S.2d 252 [2010] ). Family Court determined at the first appearance that it had jurisdiction over these proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act ( see Domestic Relations Law 5–A), and thereafter retains exclusive continuing jurisdiction until a court determines otherwise ( seeDomestic Relations Law § 76–a[1]; Matter of Hissam v. Mancini, 80 A.D.3d 802, 803, 916 N.Y.S.2d 248 [2011],lv. dismissed and denied16 N.Y.3d 870, 923 N.Y.S.2d 406, 947 N.E.2d 1184 [2011] ).
Plaintiff concedes that the MOU met the statutory requirements. Her argument that it is not enforceable because it was not "endorsed" in open court is unavailing, as there is no requirement that a properly executed written settlement agreement be so endorsed ( see Domestic Relations Law § 236 [B] [3]; compare Birr v Birr, 70 AD3d 1221, 1223 [2010]; Cheruvu v Cheruvu, 59 AD3d 876, 877 [2009]), and we decline plaintiffs invitation to establish such a requirement. A court may set aside a marital settlement agreement if it determines that the agreement was the result of "'overreaching, fraud, duress or a bargain so inequitable that no reasonable and competent person would have consented to it'" ( Empie v Empie, 46 AD3d 1008, 1009, quoting Curtis v Curtis, 20 AD3d 653, 654; see Christian v Christian, 42 NY2d 63, 70-73; Kingsley v Kingsley, 69 AD3d 1105, 1107; Rodriguez v Rodriguez, 11 AD3d 768, 769; see also Rubin v Rubin, 33 AD3d 983, 985).
New York's public policy requiring that a parent's consent to terms of visitation be in writing, signed by both parents, is longstanding. DRL § 236(B)(3) ; Birr v. Birr, 70 A.D.3d 1221, 1222, 895 N.Y.S.2d 252 (3rd Dept.2010) (an agreement such as this open-court stipulation of settlement must be in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded); Matter of William C. v. Zaida T., 10 Misc.3d 1057(A), 2005 WL 3355485 (Sup.Ct., Queens Cty.2005) (court refused to honor a seven-year-old oral visitation agreement). Oral stipulations entered in open court in which both parties evince their written consent to the terms of an agreement may be enforceable as a matter of public policy.