Lamberti v. Lamberti

51 A.D.2d 747, 379 N.Y.S.2d 464, 1976 N.Y. App. Div. LEXIS 11275

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1976
• Status: Published

Opinion

In a matrimonial action, the plaintiff wife appeals (1) from a judgment of the Supreme Court, Westchester County, entered October 21, 1974, which, inter alia, (a) granted her a divorce and (b) provided for the merger therein of a stipulation of agreement entered into between the parties in open court, which appeal brings up for review an order of the same court, entered October 11, 1974, which denied her motion (a) for a rehearing and (b) to vacate the said stipulation, and (2) from a further order of the same court, entered March 20, 1975, which denied her motion to punish defendant for contempt for failure to comply with certain provisions of the judgment. Judgment, and order entered October 11, 1974, reversed, on the law and in the interests of justice, without costs or disbursements; motion to vacate the stipulation and to reopen the case granted; all pleadings are reinstated; and action remanded to Special Term for a new trial. The questions of fact have not been considered. Appeal from the order entered March 20, 1975, dismissed as academic, without costs or disbursements, in light of the above determination. The settlement stipulation upon which the judgment of divorce was based was void because, contrary to public policy, it provided for payment of a lump-sum settlement to the wife by the husband but made no provision for her continuing support (see General Obligations Law, § 5-311; Henderson v Henderson, 47 AD2d 801). Consequently, the wife’s motion to vacate the stipulation and to reopen the case should have been granted. Under the circumstances, the husband should be placed in status quo by having his withdrawn pleadings reinstated. Hopkins, Acting P. J., Martuscello, Margett, Christ and Shapiro, JJ., concur.