Mancini v. Mancini

236 A.D.2d 449, 654 N.Y.S.2d 604, 1997 N.Y. App. Div. LEXIS 1236

Opinion

—In a matrimonial action, in which the parties were divorced by a judgment dated May 8, 1991, the defendant former husband appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered November 3, 1995, which denied his motion, inter alia, to modify the parties’ separation agreement, and granted the cross motion of the plaintiff former wife for sanctions.

Ordered that the order is affirmed, with costs.

The court properly denied the defendant’s motion to modify the parties’ separation agreement since the agreement provided that "[n]o * * * modification * * * of any of the provisions of this Agreement shall be effective unless made in writing and signed by the party to be charged.” As "[a] separation agreement is a contract subject to the principles of contract construction and interpretation” (Matter of Meccico v Meccico, 76 NY2d 822, 822-824), modification of the agreement requires the consent of the plaintiff, which she does not give.

Further, while it is uncontroverted that there occurred a lapse in the life insurance coverage provided by the plaintiff in favor of the defendant, the defendant neither alleged nor suffered any damages as a consequence, and the requisite life insurance coverage has since been procured.

While we agree with the court’s decision to award attorney’s fees to the plaintiff, we reject the plaintiff’s argument that the defendant’s conduct in bringing the instant appeal was frivolous and that sanctions should be assessed against him here (see, 22 NYCRR 130-1.1).

The defendant’s remaining contentions lack merit. Pizzuto, J. P., Santucci, Friedmann and Luciano, JJ., concur.