Opinion
No. 2022-01070 Index No. 203429/14
05-29-2024
Andrew L. Weitz, appellant, v. Melani Weitz, respondent.
Law Firm of Joel R. Brandes, P.C., New York, NY, for appellant. Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino, Michael Ratner, Lisa Colosi Florio, and Mark Goreczny of counsel), for respondent.
Law Firm of Joel R. Brandes, P.C., New York, NY, for appellant.
Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino, Michael Ratner, Lisa Colosi Florio, and Mark Goreczny of counsel), for respondent.
COLLEEN D. DUFFY, J.P. ROBERT J. MILLER WILLIAM G. FORD LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a matrimonial action in which the parties were divorced by judgment entered March 11, 2021, the plaintiff appeals from an order of the Supreme Court, Nassau County (Joseph H. Lorintz, J.), entered January 13, 2022. The order, insofar as appealed from, in effect, granted that branch of the defendant's motion which was to direct the plaintiff to deposit into a certain trust a sum equal to the amount of withdrawals he made from that trust pendente lite.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The parties were married in March 1995 and have three children in common. During the marriage, a trust was created by the plaintiff's parents for the benefit of the parties' children. The plaintiff commenced an action for a divorce and ancillary relief in November 2014. In May 2015, the Supreme Court issued an order, inter alia, directing the plaintiff to pay pendente lite maintenance and child support (hereinafter the pendente lite order).
The attorney for the children thereafter moved, inter alia, to hold the plaintiff in contempt for his willful violation of the pendente lite order. On August 22, 2018, the Supreme Court directed the plaintiff to withdraw the sum of $50,000 from the trust to pay "Sportime," and deemed the withdrawal to be an advance against the plaintiff's share of equitable distribution "to be repaid at the conclusion of trial or further order of the Court."
On November 19, 2019, the parties appeared in the Supreme Court and placed a partial stipulation of settlement (hereinafter the stipulation) on the record. The stipulation provided, inter alia, that the plaintiff was to reimburse the trust "the full amount of what was taken from that trust during the pendency of this action." On January 30, 2020, the court so-ordered the transcript of the November 19, 2019 court appearance.
A judgment of divorce was entered on March 11, 2021. The judgment of divorce provided, inter alia, that the stipulation would survive and not be merged into the judgment of divorce.
In October 2021, the defendant moved, inter alia, to direct the plaintiff to deposit into the trust a sum equal to the amount that he withdrew from the trust during the pendency of the divorce action. The plaintiff opposed the defendant's motion. In an order entered January 13, 2022, the Supreme Court, among other things, in effect, granted that branch of the defendant's motion which was to direct the plaintiff to deposit into the trust a sum equal to the amount of withdrawals he made from the trust pendente lite. The plaintiff appeals.
"Stipulations of settlement, especially open court stipulations, are favored by the courts and not lightly cast aside" (Posner v Posner, 163 A.D.3d 1016, 1018; see O'Hare v Pilla, 219 A.D.3d 845, 846). "[A]n open-court stipulation is an independent contract between the parties... and will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability" (O'Hare v Pilla, 219 A.D.3d at 846 [internal quotation marks omitted]).
Here, the record demonstrates that the parties validly entered into the stipulation by which the plaintiff knowingly, voluntarily, and intelligently agreed to be bound (see id.; Ebel v Ebel, 121 A.D.3d 934, 935). Contrary to the plaintiff's contention, failing to specify the sum that the plaintiff owed to the trust in the stipulation did not render the stipulation an unenforceable agreement to agree (see LMEG Wireless, LLC v Farro, 190 A.D.3d 716, 718-719; Omar v Rozen, 55 A.D.3d 705, 706).
The plaintiff's remaining contentions are not properly before this Court.
DUFFY, J.P., MILLER, FORD and LOVE, JJ., concur.