Opinion
112 CA 19-00834
08-20-2020
Thomas E. MCGOVERN, Plaintiff-Respondent, v. Yolanda J. MCGOVERN, Defendant-Appellant.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is modified on the law by vacating the 2nd through 11th decretal paragraphs, and as modified the judgment is affirmed without costs and the matter is remitted to Supreme Court, Ontario County, for further proceedings in accordance with the following memorandum: Plaintiff husband commenced this action in 2015 seeking a divorce. In 2017, the parties placed on the record an oral stipulation of settlement that, inter alia, provided for the distribution of the marital property. Although the oral stipulation contemplated the signing of a postnuptial agreement, defendant wife refused to sign such an agreement. Nevertheless, Supreme Court issued a judgment that acknowledged that the parties had placed on the record in open court an oral stipulation resolving all disputed issues, and that provided, inter alia, that the oral stipulation was incorporated but not merged into the judgment. Defendant appeals.
We agree with defendant that the oral stipulation rendered in open court did not satisfy the requirements of Domestic Relations Law § 236 (B) (3), and it is therefore invalid and unenforceable. "In matrimonial actions ... an open court stipulation is unenforceable absent a writing that complies with the requirements for marital settlement agreements" ( Keegan v. Keegan , 147 A.D.3d 1417, 1418, 46 N.Y.S.3d 760 [4th Dept. 2017] ). "More particularly, to be valid and enforceable, marital settlement agreements must be ‘in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded’ ( § 236 [B] [3] )" ( id. ; see also Lewis v. Lewis , 70 A.D.3d 1432, 1433, 894 N.Y.S.2d 290 [4th Dept. 2010] ; Tomei v. Tomei , 39 A.D.3d 1149, 1150, 834 N.Y.S.2d 781 [4th Dept. 2007] ; Sorge v. Sorge , 238 A.D.2d 890, 890, 660 N.Y.S.2d 776 [4th Dept. 1997] ; Conti v. Conti , 199 A.D.2d 985, 985-986, 605 N.Y.S.2d 597 [4th Dept. 1993] ).
Here, inasmuch as there was no acknowledgment simultaneously executed with the oral stipulation (cf. Ashcraft v. Ashcraft [appeal No. 2], 195 A.D.2d 963, 964, 601 N.Y.S.2d 753 [4th Dept. 1993] ), we agree with defendant that she is entitled to the relief she is seeking on appeal, i.e., vacatur of the judgment of divorce except to the extent that the judgment granted the divorce itself, granted defendant the corresponding right to resume the use of a prior surname, and provided for service of the judgment upon defendant. We therefore modify the judgment accordingly, and we remit the matter to Supreme Court for a new determination, following a hearing if necessary (see Keegan , 147 A.D.3d at 1418, 46 N.Y.S.3d 760 ; Lewis , 70 A.D.3d at 1433, 894 N.Y.S.2d 290 ).
We disagree with our dissenting colleague's conclusion that dismissal of this appeal is required because "defendant is not aggrieved by that to which she stipulated." Defendant is aggrieved because the oral stipulation rendered in open court, which was incorporated but not merged into the judgment of divorce, did not satisfy the requirements of Domestic Relations Law § 236 (B) (3), and thus it is invalid and unenforceable. None of the cases cited by our dissenting colleague involve these circumstances, and defendant was not required to move to vacate the stipulation. Our case law, which is not addressed by the dissent, allows the defendant in such circumstances to seek to invalidate the oral stipulation on direct appeal from the judgment (see Lewis , 70 A.D.3d at 1433, 894 N.Y.S.2d 290 ; Conti , 199 A.D.2d at 985-986, 605 N.Y.S.2d 597 ).
All concur except Curran, J., who dissents and votes to dismiss the appeal in the following memorandum:
I respectfully dissent because I conclude that this appeal must be dismissed. Inasmuch as defendant's contentions with respect to the judgment were resolved by the parties' oral stipulation that was incorporated but not merged into the judgment of divorce, dismissal of this appeal is required because defendant is not aggrieved by that to which she stipulated (see Dumond v. New York Cent. Mut. Fire Ins. Co. , 166 A.D.3d 1554, 1555 [4th Dept. 2018] ; see generally CPLR 5511 ; Adams v. Genie Indus., Inc. , 14 N.Y.3d 535, 540-541, 903 N.Y.S.2d 318, 929 N.E.2d 380 [2010] ; Koziol v. Koziol , 60 A.D.3d 1433, 1434, 878 N.Y.S.2d 524 [4th Dept. 2009], appeal dismissed 13 N.Y.3d 763, 886 N.Y.S.2d 864, 915 N.E.2d 1161 [2009] ). Defendant's proper remedy was to move to vacate the stipulation and appeal from the ensuing order, assuming that Supreme Court denied her motion (see generally Matter of Annabella B.C. [Sandra L.C.] , 136 A.D.3d 1364, 1365, 24 N.Y.S.3d 570 [4th Dept. 2016] ; Matter of Maria J. [Peter J.] , 129 A.D.3d 1660, 1661, 11 N.Y.S.3d 781 [4th Dept. 2015] ; Koziol , 60 A.D.3d at 1434, 878 N.Y.S.2d 524 ). In my view, the cases relied upon by the majority do not address the fundamental requirement that, for there to be a justiciable controversy, the appellant must be aggrieved.