Auble v. Auble

90 A.D.2d 667, 456 N.Y.S.2d 245, 1982 N.Y. App. Div. LEXIS 18745

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1982
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term (Bryant, J.), entered April 6, 1982 in Tompkins County, which denied plaintiff’s motion to vacate or modify a divorce judgment. Plaintiff served defendant with a summons and complaint for divorce which contained no request for ancillary relief. A judgment of divorce by default was entered in plaintiff’s favor on August 21, 1981. Both parties had previously reached a mutually agreeable financial settlement and had executed legal documents to effect such a settlement which were prepared by plaintiff’s counsel. On March 15,1982, plaintiff sought by an order to show cause to modify the divorce decree and sought permission to litigate the issues of maintenance, child support and equitable distribution, or, in the alternative, a modification of the judgment of divorce and reference to Family Court for a hearing and determination of these issues. The motion was in all respects denied. There should be an affirmance. Plaintiff’s moving papers fail to spell out any statutory grounds to disturb the final judgment. Plaintiff sought and was accorded a substantial financial settlement. There are no allegations made by plaintiff in her moving papers of overreaching by the defendant husband, or of duress or unconscionability in the settlement reached between the parties. Plaintiff was represented by counsel in the proceedings. All these circumstances foreclose the relief sought (Rado v Rado, 51 AD2d 811). Order affirmed, with costs. Sweeney, J. P., Kane, Main, Mikoll and Yesawich, Jr., JJ., concur.