Stewart v. Stewart

Appellate Division of the Supreme Court of New York

Stewart v. Stewart

126 A.D.2d 718, 511 N.Y.S.2d 315, 1987 N.Y. App. Div. LEXIS 41863

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

DecidedJanuary 26, 1987

StatusPublished

This text of 126 A.D.2d 718 (Stewart v. Stewart) 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

Stewart v. Stewart, 126 A.D.2d 718, 511 N.Y.S.2d 315, 1987 N.Y. App. Div. LEXIS 41863 (N.Y. Ct. App. 1987).

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Opinion

In an action to set aside a stipulation of settlement in an action for a divorce and ancillary relief, the plaintiff husband appeals from a judgment of the Supreme Court, Dutchess County (Benson, J.), entered September 5, 1985, which, inter alia, dismissed his complaint and granted the defendant’s counterclaim for arrears of maintenance and child support in the principal sums of $36,375 and $29,100, respectively.

Ordered that the judgment is modified, on the law, by reducing the award of alimony arrears from $36,375 to $32,750 and the award of child support arrears from $29,100 to $26,200. As so modified, the judgment is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of an appropriate amended judgment.

We agree with the trial court that the plaintiff failed to establish that the subject stipulation of settlement in an action for divorce, made in open court, should be set aside by reason of the alleged fraud in the inducement by the defendant, his former wife. Furthermore, the credible evidence supports the trial court’s finding that the plaintiff abandoned his limited efforts at visitation at an early stage. In addition, he never sought to enforce these rights. Thus, the court did not err in awarding a judgment to the defendant on her [719]*719counterclaim for support arrears, especially since the plaintiff never moved for modification or termination of his support obligation (see, Miller v Miller, 117 AD2d 719). Moreover, the plaintiff’s contention that the interest awarded on the defendant’s judgment was miscalculated is without merit.

However, the court erred in awarding a judgment for support arrears beyond the date of the trial. The judgment is modified accordingly. Mollen, P. J., Thompson, Weinstein and Rubin, JJ., concur.

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In an action to set aside a stipulation of settlement in an action for a divorce and ancillary relief, the plaintiff husband appeals from a judgment of the Supreme Court, Dutchess County (Benson, J.), entered September 5, 1985, which, inter alia, dismissed his complaint and granted the defendant’s counterclaim for arrears of maintenance and child support in the principal sums of $36,375 and $29,100, respectively.

Ordered that the judgment is modified, on the law, by reducing the award of alimony arrears from $36,375 to $32,750 and the award of child support arrears from $29,100 to $26,200. As so modified, the judgment is affirmed, with costs to the defendant, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of an appropriate amended judgment.

We agree with the trial court that the plaintiff failed to establish that the subject stipulation of settlement in an action for divorce, made in open court, should be set aside by reason of the alleged fraud in the inducement by the defendant, his former wife. Furthermore, the credible evidence supports the trial court’s finding that the plaintiff abandoned his limited efforts at visitation at an early stage. In addition, he never sought to enforce these rights. Thus, the court did not err in awarding a judgment to the defendant on her [719]*719counterclaim for support arrears, especially since the plaintiff never moved for modification or termination of his support obligation (see, Miller v Miller, 117 AD2d 719). Moreover, the plaintiff’s contention that the interest awarded on the defendant’s judgment was miscalculated is without merit.

However, the court erred in awarding a judgment for support arrears beyond the date of the trial. The judgment is modified accordingly. Mollen, P. J., Thompson, Weinstein and Rubin, JJ., concur.

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Bluebook (online)

126 A.D.2d 718, 511 N.Y.S.2d 315, 1987 N.Y. App. Div. LEXIS 41863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-stewart-nyappdiv-1987.

Opinion

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