Lang v. Lang

20 A.D.3d 396, 798 N.Y.S.2d 135

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 2005
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by judgment dated July 18, 2000, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Yancey, J.), entered November 26, 2003, which, upon an order of the same court dated October 15, 2003, granting those branches of the defendant’s motion which were to confirm so much of a referee’s report and recommendation (Flatt, J.H.O.), as found him in willful violation of certain terms of the parties’ stipulation of settlement and the judgment of divorce and directing the entry of judgment against him in the principal sum of $86,437.30, is in favor of the defendant and against him in the principal sum of $86,437.30.

Ordered that the notice of appeal from the order is deemed to be a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,

Ordered that the judgment is affirmed, without costs or disbursements.

A separation agreement is a contract subject to the principles of contract construction and interpretation (see Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990]). The Supreme Court properly found that the plaintiff willfully violated the parties’ stipulation of settlement, which was incorporated, but not merged, into their judgment of divorce, when he failed to comply with its provision regarding the upkeep of their investment property (see Gomes v Gomes, 303 AD2d 454, 455 [2003]), and the defendant was thereby damaged in the principal sum of $86,437.30.

Since the plaintiff did not appeal from a separate order entered April 28, 2003, granting the defendant an award of an attorney’s fee, his contention regarding the fee is not properly before this Court.

The plaintiffs remaining contentions are without merit. H. Miller, J.E, Krausman, Crane and Fisher, JJ., concur.