Lischynsky v. Lischynsky

95 A.D.2d 111, 466 N.Y.S.2d 815, 1983 N.Y. App. Div. LEXIS 18526

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 4, 1983
• Status: Published

Opinions

OPINION OF THE COURT

Casey, J.

The parties were married in 1976 and, in August, 1980, plaintiff commenced this action for divorce on the grounds of cruel and inhuman treatment. Defendant’s answer consisted of a general denial. During the trial, the parties stipulated that defendant would amend her answer to include a counterclaim for divorce on the grounds of cruel and inhuman treatment, that each party would go forward with proof on his or her grounds for divorce and that the dispute over the parties’ property would be resolved pursuant to an agreement placed on the record. The parties proceeded to put in their proof concerning cruel and inhuman treatment. The trial court found that each party had established the other’s cruel and inhuman treatment as alleged and that the stipulated property settlement was fair and reasonable when made and not unconscionable at the entry of judgment. The judgment granted dual divorce and ordered that the stipulated agreement govern all questions of alimony and maintenance, equitable distribution of marital property, distributive award, and any other financial, property and matrimonial matters. Defendant appeals from the dual judgment of divorce and plaintiff cross-appeals from that portion of the judgment which incorporates but does not merge the stipulated agreement.

Pursuant to section 236 (part B, subd 5, par a) of the Domestic Relations Law (unless otherwise indicated all statutory references hereinafter are to the Domestic Relations Law), the court “shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment”, unless the parties have provided for disposition of their property in an agreement which meets the requirements of section 236 (part B, subd 3). When the court makes the required disposition of the parties’ property, “[sjeparate property shall remain such” (§ 236, part B, subd 5, par b), and “[mjarital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties” (§ 236, part B, subd 5, par c). In making the equitable distribution required above, the court is required to consider nine specific factors (§ 236, part B, subd 5, par d, els [l]-[9]) and “any other factor which the court shall expressly find to be just and proper” (§236, part B, subd 5, par d, cl [10]). Failure to consider the factors as mandated by the statute requires reversal of that portion of the judgment pertaining to distribution of the parties’ property (Nielsen v Nielsen, 91 AD2d 1016). It is clear from the record herein that the trial court considered only whether the parties’ stipulated agreement concerning disposition of their property was fair and reasonable at the time of its making or unconscionable at the time of entry of judgment. Accordingly, unless the stipulated agreement constitutes an “opting out” agreement, as provided for in section 236 (part B, subd 3), the equitable distribution ordered by the trial court herein is invalid (see Giambattista v Giambattista, 89 AD2d 1057).

Section 236 (part B, subd 3) provides that “[a]n agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded”. The stipulated agreement herein, while transcribed in the record, has been neither subscribed by the parties nor acknowledged or proven in the manner required to entitle a deed to be recorded. The agreement, therefore, does not meet the requirements of section 236 (part B, subd 3) and is insufficient to allow the court to ignore the requirements of section 236 (part B, subd 5) (Hanford v Hanford, 91 AD2d 829; see, also, Giambattista v Giambattista, supra).

Defendant maintains that the entire judgment, including that portion which grants each party a divorce on the grounds of cruel and inhuman treatment, must be reversed. We disagree. The conclusion that the stipulated property settlement is not an “opting out” agreement under section 236 (part B, subd 3) and that, therefore, the property disposition made without considering the factors enumerated in section 236 (part B, subd 5, par d) is invalid, does not automatically require that the entire judgment, including the grant of a dual divorce, be reversed (see Hanford v Hanford, supra). Unlike Giambattista v Giambattista (supra), upon which defendant relies, the record herein does not establish that the parties agreed that each would receive a divorce from the other based upon cruel and inhuman treatment provided they could resolve their financial questions. Rather, they merely stipulated that defendant could amend her answer to include a counterclaim for divorce on the grounds of cruel and inhuman treatment and that each party would then put in his or her proof on the issue of the other’s cruel and inhuman treatment. The transcript of counsels’ discussions containing the property settlement reveal an awareness that whether a divorce ultimately would be granted depended upon the parties’ proof. Here, each party submitted his or her proof, which the trial court found sufficient to provide a basis for granting a divorce, and defendant does not contest these factual findings and legal conclusions. Under these circumstances, we see no basis for disturbing any portion of the judgment other than that pertaining to the property rights of the parties under part B of section 236 of the Domestic Relations Law.

The judgment should be modified, on the law, by reversing so. much thereof as ordered that all questions concerning maintenance payments, equitable distribution of marital property, distributive award, finances, personal and real property, and other marital matters be governed by the agreement stipulated to in open court, the matter remitted for further proceedings not inconsistent herewith, and as so modified, affirmed, without costs.