Marshall v. Marshall

Appellate Division of the Supreme Court of New York

Marshall v. Marshall

216 A.D.2d 130, 629 N.Y.S.2d 203, 1995 N.Y. App. Div. LEXIS 6558

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

DecidedJune 20, 1995

StatusPublished

This text of 216 A.D.2d 130 (Marshall v. Marshall) 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

Marshall v. Marshall, 216 A.D.2d 130, 629 N.Y.S.2d 203, 1995 N.Y. App. Div. LEXIS 6558 (N.Y. Ct. App. 1995).

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Opinion

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about March 8, 1994, which, inter alia, directed that a money judgment be entered in favor of defendant-wife and against plaintiff in the sum of $51,870 plus costs, interests and disbursements, unanimously affirmed, without costs.

The parties were divorced in 1990. Incorporated, but not merged, into the judgment of divorce was a separation agreement, dated November 27, 1989, which requires, among other [131]*131things, that plaintiff make certain support payments to defendant. Pursuant to this agreement, its terms may not be modified, rescinded or amended unless in writing signed by the parties. The separation agreement has never been modified in writing or by court order. Yet, plaintiff claims that his former wife acquiesced in, and voluntarily expressed a willingness to accept maintenance payments lower than those set forth in the agreement when he was purportedly compelled to endure "dramatically reduced income” arising out of his "extended periods of unemployment”.

An agreement which has been incorporated, but does not merge, into a judgment of divorce survives as a separate contract (Riley v Riley, 179 AD2d 750). Defendant strongly denies ever consenting to accept less support from her former husband.

We have considered plaintiff’s remaining contentions and find them to be without merit. Concur—Kupferman, J. P., Ross, Asch, Nardelli and Tom, JJ.

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Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about March 8, 1994, which, inter alia, directed that a money judgment be entered in favor of defendant-wife and against plaintiff in the sum of $51,870 plus costs, interests and disbursements, unanimously affirmed, without costs.

The parties were divorced in 1990. Incorporated, but not merged, into the judgment of divorce was a separation agreement, dated November 27, 1989, which requires, among other [131]*131things, that plaintiff make certain support payments to defendant. Pursuant to this agreement, its terms may not be modified, rescinded or amended unless in writing signed by the parties. The separation agreement has never been modified in writing or by court order. Yet, plaintiff claims that his former wife acquiesced in, and voluntarily expressed a willingness to accept maintenance payments lower than those set forth in the agreement when he was purportedly compelled to endure "dramatically reduced income” arising out of his "extended periods of unemployment”.

An agreement which has been incorporated, but does not merge, into a judgment of divorce survives as a separate contract (Riley v Riley, 179 AD2d 750). Defendant strongly denies ever consenting to accept less support from her former husband.

We have considered plaintiff’s remaining contentions and find them to be without merit. Concur—Kupferman, J. P., Ross, Asch, Nardelli and Tom, JJ.

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Bluebook (online)

216 A.D.2d 130, 629 N.Y.S.2d 203, 1995 N.Y. App. Div. LEXIS 6558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-marshall-nyappdiv-1995.

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