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Decided: April 16, 2008
Justice Rosalyn Richter
NEW YORK COUNTY
Supreme Court
On January
28, 2008, the parties and
their counsel appeared before the Court and, after an extended period of
negotiation, they placed upon the record a stipulation of settlement of this
matrimonial action. The settlement provided for, inter alia, the equitable
distribution of certain property, maintenance to be paid by the husband to the
wife and an agreement that the wife could remain in the marital residence for
four months. The parties agreed to enter into and sign a separation agreement
that encompassed these terms and which would eventually serve as the basis for
a conversion divorce after the requisite one-year period had elapsed. The parties
also agreed that, upon signing the separation agreement, the husband would
withdraw his current action for divorce, which alleged cruel and inhuman
treatment, that the wife would withdraw her answer and any objections to the
granting of a divorce and that the matter would be marked disposed. Both sides
specifically agreed to cooperate with each other and sign all the paperwork
necessary to convert the separation agreement into a divorce.
After placing the settlement agreement upon the record, the Court proceeded to
allocute the parties. Both sides stated that they agreed to the terms of the
settlement, that they understood that it was a final resolution of the case and
that if one party failed to sign the necessary paperwork, the other party could
still move to enforce the agreement. Subsequently, the husband drafted and
presented to the wife a separation agreement that purportedly contained the
agreed-upon terms. The wife, however, refused to sign it.
In Motion Sequence No. 4, the husband asks the Court to "so-order"
the settlement agreement reached by the parties on the record and to compel the
wife to comply with its terms. It is well-established that stipulations of
settlement placed upon the record to settle a matrimonial action are not
lightly cast aside and are enforceable absent a showing of fraud, duress or
mistake. See, e.g., Balkin v. Balkin, 43 A.D.3d 967 (2d Dept. 2007); Weissman v. Weissman, 42 A.D.3d 448 (2d Dept. 2007); Storette v. Storette, 11 A.D.3d 365 (1st Dept. 2004). For
public policy reasons, such stipulations are favored by the courts,
"especially those entered in open court, and including those in
matrimonial actions, where strict enforcement not only accomplishes efficient
dispute resolution but also effectuates judicial economy". Rubenfeld v. Rubenfeld, 279 A.D.2d 153, 156 (1st Dept. 2001).
Here, there are no allegations of fraud, duress or other considerations that
would invalidate the settlement reached by the parties and, in fact, the wife
agrees that the statements made on the record are binding. Therefore, the Court
will "so-order" the transcript and the wife is directed to comply
with its terms, including executing the confession of judgment, dividing the
marital property as per the terms of the settlement and vacating the marital
home by May 31, 2008.1 See Pretterhofer v. Pretterhofer, 37
A.D.3d 446 (2d Dept. 2007)(affirming lower court's decision directing that
open court stipulation of settlement be submitted to be "so-ordered"
by the court).
The husband also seeks an order directing the wife to execute the written
separation agreement previously tendered to her. The Court denies this request
because the written agreement, which is 29 pages in length, contains numerous
additional terms that were not part of the open court stipulation. Thus, the
Court cannot compel the wife to sign an agreement that varies from the
settlement placed on the record in court, and the husband conceded as much at
oral argument on this motion.
The Court can, however, direct the wife to sign a separation agreement that
tracks the agreement reached by the parties in open court. In light of the fact
that the wife expressly agreed to enter into and sign a separation agreement
that encompassed the settlement reached, the signing of such agreement is a ministerial
act and a mere formality. See Rubenfeld v. Rubenfeld, 279 A.D.2d at 153 (affirming trial
court's order, in accord with an open court stipulation of settlement,
compelling the wife to execute documents necessary to effectuate the separation
of the marital property); see also Vider v. Vider, 46 A.D.3d 673 (2d Dept. 2007)(lower court
properly directed the plaintiff to execute certain deeds based on oral
stipulation of settlement placed on the record); Erdogan v. Simone, 69 A.D.2d 931 (3d Dept. App. Term 1979)(affirming
trial court's granting of the plaintiff's motion to compel the defendant to
execute an agreement pursuant to a stipulation of settlement). Thus, the
husband is directed to provide the wife with a written separation agreement
that encompasses only the terms of the open court stipulation, and no other
terms, and the wife is ordered to sign such agreement.
Finally, the parties are in disagreement as to the calculation of the amount
due to the wife as her share of the husband's bonus. The open court stipulation
provided that the wife would receive 25 percent of the "after-tax
amount" of the bonus, which the husband had not yet received at the time
of the settlement. The parties agreed that the husband would provide the wife
with a copy of his bonus statement to verify the amount of the bonus. After the
settlement was reached, the husband gave the wife a copy of his bonus
statement. The wife contends that she is entitled to 25 percent of the after-tax
amount shown on the bonus statement. The husband counters that the amount of
the tax withheld on bonus statement is not an accurate reflection of his tax
liabilities, and that he is only obligated to give her 25 percent of the bonus
amount reduced by his actual tax liability.
The Court agrees with the husband's interpretation. When the settlement
agreement was placed on the record, the Court expressly stated that the exact
amount of the wife's share "will have to await the review of the bonus
statement and the determination of the tax rate" (emphasis added).
The Court also stated that the wife would get 25 percent of the bonus amount
"minus federal, state and city tax liabilities" (emphasis
added). Thus, it is clear that the wife's share is 25 percent of the bonus
reduced not by the amount of taxes withheld, but by the actual tax liability of
the husband.
In Motion Sequence No. 5, the wife seeks resumption of the pendente lite
maintenance award and an award of counsel fees. In light of this Court's decision
upholding the stipulation of settlement, the wife's motion is moot. Maintenance
shall be governed by the terms of the open court stipulation, and counsel fees
were never requested, or agreed upon, in the stipulation of settlement.
This matter shall be adjourned to May 8, 2008 at 2:15 p.m. as a control date to
ensure there has been compliance with the terms of this decision and order. In
the event that the relevant documents have been signed and the husband has
filed a stipulation of discontinuance of this action as per the settlement
agreement, no appearance will be required.
This constitutes the decision and order of the Court.
SupremeCourtJusticeRichter
1. The husband's request for an order directing the wife to sign any documents
required for a Qualified Domestic Relations Order ("QDRO") is denied.
The husband has failed to explain why a QDRO would be necessary to effectuate
the settlement reached by the parties.
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