Brody v. Brody

Appellate Division of the Supreme Court of New York

Brody v. Brody

82 A.D.3d 812, 918 N.Y.2d 383

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 8, 2011

StatusPublished

Cited by3 cases

This text of 82 A.D.3d 812 (Brody v. Brody) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brody v. Brody, 82 A.D.3d 812, 918 N.Y.2d 383 (N.Y. Ct. App. 2011).

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Opinion

The Supreme Court properly denied those branches of the plaintiffs motion which were to set aside the child support provisions of a stipulation of settlement entered into by the parties on September 13, 2002, which was incorporated but not merged into a judgment of divorce, on the ground that those provisions did not comply with Domestic Relations Law § 240 (1-b) (h), and to recalculate child support de novo. “A postjudgment motion in a matrimonial action is not the proper vehicle for challenging the propriety of child support provisions contained in a stipulation of settlement incorporated but not merged into a judgment of divorce” (Lepe v Rodriguez, 73 AD3d 710, 710-711 [2010]; see Barany v Barany, 71 AD3d 613, 614 [2010]; Makara v Makara, 65 AD3d 1018, 1019 [2009]; cf. Luisi v Luisi, 6 AD3d 398, 400 [2004]). “A challenge to such a stipulation must be made by the commencement of a separate plenary action to set aside the stipulation” (Lepe v Rodriguez, 73 AD3d at 711; see Barany v Barany, 71 AD3d at 614; Makara v Makara, 65 AD3d at 1019).

The plaintiffs remaining contentions are either improperly raised for the first time on appeal or without merit. Covello, J.E, Belen, Hall and Cohen, JJ., concur.

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The Supreme Court properly denied those branches of the plaintiffs motion which were to set aside the child support provisions of a stipulation of settlement entered into by the parties on September 13, 2002, which was incorporated but not merged into a judgment of divorce, on the ground that those provisions did not comply with Domestic Relations Law § 240 (1-b) (h), and to recalculate child support de novo. “A postjudgment motion in a matrimonial action is not the proper vehicle for challenging the propriety of child support provisions contained in a stipulation of settlement incorporated but not merged into a judgment of divorce” (Lepe v Rodriguez, 73 AD3d 710, 710-711 [2010]; see Barany v Barany, 71 AD3d 613, 614 [2010]; Makara v Makara, 65 AD3d 1018, 1019 [2009]; cf. Luisi v Luisi, 6 AD3d 398, 400 [2004]). “A challenge to such a stipulation must be made by the commencement of a separate plenary action to set aside the stipulation” (Lepe v Rodriguez, 73 AD3d at 711; see Barany v Barany, 71 AD3d at 614; Makara v Makara, 65 AD3d at 1019).

The plaintiffs remaining contentions are either improperly raised for the first time on appeal or without merit. Covello, J.E, Belen, Hall and Cohen, JJ., concur.

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Bluebook (online)

82 A.D.3d 812, 918 N.Y.2d 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brody-v-brody-nyappdiv-2011.

Opinion

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