Summary
modifying provisions of judgment that "impermissibly altered the stipulation of settlement"
Summary of this case from Kantrowitz, Goldhamer & Graifman, P.C. v. Mason (In re Mason)Opinion
December 16, 1998
Appeal from the judgment of the Supreme Court, Westchester County (Barone, J.).
Ordered that the judgment is modified, on the law, by (1) deleting the second decretal paragraph thereof, and substituting therefor a provision awarding joint custody of the infant children to the husband and the wife, (2) deleting so much of the fourth decretal paragraph as awarded the plaintiff the personal property in the marital residence, and substituting therefor a provision distributing the personal property in the marital residence as enumerated in the parties' stipulation of settlement, and (3) deleting the eighth decretal paragraph thereof, and substituting therefor a provision stating that the husband and wife respectively waive their claims to an interest in the professional licenses of the other; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
It is well settled that a stipulation of settlement is an independent contract binding on the parties, and that a court may not impair a party's contractual rights under the agreement by modifying the judgment of divorce ( see, Rainbow v. Swisher, 72 N.Y.2d 106, 109; Verasco v. Verasco, 225 A.D.2d 616). Moreover, the stipulation of settlement, which was agreed to by the plaintiff and the defendant in open court, is strictly enforceable, absent a showing of fraud, or some other ground sufficient to vitiate a contract ( see, Manno v. Manno, 196 A.D.2d 488, 489). However, contrary to the defendant's contentions, the provision of the judgment directing that visitation with his two teenaged children take place away from the marital residence, and the provision utilizing the statutory language of Domestic Relations Law § 240 (1-b) (h) to explain the deviation from the basic child support obligation, did not modify the stipulation of settlement so as to impair any of his contractual rights ( cf., Lamberti v. Lamberti, 158 A.D.2d 449, 450).
Nevertheless, the provisions of the judgment regarding child custody, the personal property in the marital residence, and the equitable distribution of the parties' respective professional licenses impermissibly altered the stipulation of settlement, and are modified accordingly.
The appellants' remaining contentions are without merit.
Rosenblatt, J. P., Ritter, Copertino and Thompson, JJ., concur.