Leverenz v Lurie

[*1] Leverenz v Lurie 2006 NY Slip Op 52175(U) [13 Misc 3d 1239(A)] Decided on November 20, 2006 Supreme Court, Westchester County Lubell, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 20, 2006
Supreme Court, Westchester County

Lucille N. Leverenz a/k/a Lucille N. Lurie, Plaintiff,

against

Nathan Lurie, Defendant.



11433-05



George Hunter Roberts, Esq.

Attorney for Plaintiff

200 Katonah Avenue

Katonah, NY 10536

Howard Dean, Esq.

Attorney for Defendant

150 White Plains Road

Tarrytown, NY 10591

Lewis Jay Lubell, J.

The novel issue raised in this matrimonial action is whether an on-the-record stipulation between parties before the Family Court relating to equitable distribution issues between the parties which are pending before the Supreme Court falls outside the ambit of section 236(B)(3) of the Domestic Relations Law which, among other things, requires that such agreements be "in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." For the reasons herein stated, the Court finds that it does not.

In November 1995, plaintiff purchased a condominium located at Unit 717B at Heritage Hills, Somers, New York. Upon the parties January 15, 2000 marriage, defendant moved into Unit 717B thus rendering it the marital residence. Plaintiff and defendant lived there as husband and wife until November 15, 2005 when, upon plaintiff's application to the Family Court (Davidson, J.) for an order of protection against defendant, defendant vacated the marital residence.

The parties entered into a Prenuptial Agreement one day before their marriage. By Modification of Prenuptial Agreement dated September 29, 2000, the parties accounted for defendant's purchase from plaintiff of an interest in the marital residence set forth herein.

Plaintiff now moves for an ORDER, upon default, granting plaintiff a Judgment of Divorce on the grounds of constructive abandonment. She also moves for an ORDER adjudicating that the net equities of plaintiff and defendant in the marital residence is $67,500.00 each.

That aspect of plaintiff's motion seeking a Judgment of Divorce is granted as was consented to on the record before this Court on September 26, 2006. The entry of Judgment is stayed, however, pending a final determination of all outstanding issues. [*2]

The second prong of the motion seeking an adjudication of the parties' net equity in the marital residence is denied for the reasons herein stated as is defendant's unnoticed application (cross-motion) to have the Court refer the issue of valuation of the marital residence to the American Arbitration Association.

Upon appearing in Family Court on November 15, 2005 in response to plaintiff's application for an order of protection against defendant, the parties placed upon the record various understandings which rendered the application academic, including defendant's agreement to permanently vacate the marital residence.

Although the parties thorough counsel and the Family Court itself acknowledged the fact that the Family Court lacked jurisdiction over the anticipated dissolution of the marriage and the related equitable distribution issues, the parties nonetheless also placed various terms of their agreement in this regard on the record.

The pertinent part of the Family Court transcript provides:

MR. DEAN: Your Honor there is one more thing, And that's Your Honor, that the parties have agreed that there's one issue on the matrimonial, only one asset that's in dispute. And that's the value of the house and that will be submitted to the American Arbitration Association . . .

THE COURT: And I don't have any jurisdiction over that.

MR. ROBERTS: . . . I don't think it's a part of this Court's record because we also agree that there would be a divorce inquest and that inquest would have an open court stipulation to submit the equitable distribution . . . in arbitration.

. . .

MR. DEAN: What he said is correct your Honor, we agreed to that.

THE COURT: Okay, just so we're clear. I don't have the jurisdiction to order it, but, you want to say it for understanding then that's fine.

Thereafter, counsel exchanged correspondence in their effort to formalize the understanding placed upon the record in Family Court regarding the issues pertaining to this matrimonial action. Unsuccessful in that endeavor, the parties appeared before this [*3]Court (Tolbert, J.) on May 19, 2006 for a Preliminary Conference at which time they advised the Court via the Preliminary Conference Order that the "issue of equitable distribution of the marital assets is un-resolved. The martial estate includes . . . a marital residence [with respect to which both parties had already done appraisals]."

Plaintiff now moves for an order adjudicating the net equities of plaintiff and defendant in the marital residence to be $67,500.00 each. The motion is denied.

Notwithstanding the existence of the Prenuptial Agreement and amendment thereto, the relief requested by plaintiff is based upon averages, estimates, and speculation without allowing the defendant a full and fair opportunity to properly challenge the proposed valuation figure by way of cross-examination and the presentation of his own evidence in proper form. Absent a clear, unequivocal, and binding agreement between the parties to determine the issue of valuation by averaging each other's appraisals, the Court concludes that there is at least one material issue of fact - valuation of the marital residence - which precludes the issuance of a final and binding determination on papers alone.

Defendant's unnoticed application to have the valuation issue referred to the American Arbitration Association is denied for lack of proper notice and, in any event, is denied on the merits. The agreement placed upon the record in Family Court with respect to the issue of valuation of the marital residence is not binding on either party to this matrimonial action.

It is well-established that:

A "'stipulation entered into in open court, with the parties and counsel present, is a binding contract' " (Blake v. Blake, 229 AD2d 509; Bellefleur v. Gervais, 201 AD2d 524, 525; Barzin v. Barzin, 158 AD2d 769, 770). Such a stipulation is enforceable as a contract (see, Lazich v. Vittoria & Parker, 196 AD2d 526, 527), and the court cannot re-write the agreement if the parties have not assented to such a reformation (see, Tinter v Tinter, 96 AD2d 556).

(Carroll v. Carroll, 236 AD2d 353, 354 [2d Dept., 1997]).

However, section §236(b)(3) of the Domestic Relations Law provides:

An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if [*4]such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.

Upon addressing the issue as to whether an on-the-record oral stipulation entered into in open court falls within the ambit of section 236(B)(3) of the Domestic Relations Law - thus rendering it void for failure to comply with the formalities set forth therein - the Court held in Harrington v. Harrington (103 AD2d 356 [2d Dept., 1984]) that in enacting section 236(B)(3) the Legislature did not intend to discourage or impede the well established tradition of using open court to settle matrimonial disputes (see also, Rubenfeld v. Rubenfeld, 279 AD2d 153, 158-159 [1st Dept., 2001]; De Jose v De Jose , 104 AD2d 629, affd 66 NY2d 804; Robinson v. Robinson , 111 AD2d 316 [section 236(B)(3) is inapplicable to on-the-record stipulations settling property issues within a matrimonial action]).

It is axiomatic, however, that the Court before which the stipulation is entered must, in the first instance, have jurisdiction over the subject matter which is the subject of the stipulation.

Here, since there is no dispute that the Family Court, a court of limited jurisdiction, lacked jurisdiction over the equitable distribution issue about which the parties had agreed (see, NY Const., art. VI, §13; Family Court Act §115; Sparacio v. Sparacio, 248 AD2d 705 [2d Dept., 1998][Family Court is a court of limited jurisdiction without power to set aside or modify the terms of a settlement agreement reached in Supreme Court in connection with a matrimonial action; Lawrence F.D. v. Anne Marie A., 11 Misc 3d 1078(A)[Fam. Ct., 2006][parties cannot consent to extend the jurisdiction of the Family Court]), neither party is bound by the terms of the agreement placed on the record in Family Court to the extent that it relates to the division of marital assets and/or the method through which to value same. An on-the-record stipulation in Family Court over issues falling outside of the jurisdiction of the Family Court does not obviate compliance with the dictates of section 236(B)(3) of the Domestic Relations Law.

Since, based upon this determination, there are still outstanding issues relating to equitable distribution, the parties are directed to appear before the Court on December 19, 2006, 9:30 A.M., for a status conference.

The foregoing constitutes the Opinion, Decision & Order of the Court. [*5]

The Court considered the following papers in connection with this determination:

PAPERSNUMBERED

Notice of Motion/Affidavit/Exhibits1

Reply to Plaintiff's Motion for Summary Judgment

and Cross-Motion and Legal Memorandum/

Affidavit/Exhibits2

Reply "Affirmation"/Exhibits3

Dated: White Plains, New York

November 20 , 2006

_____________________________

HON. LEWIS J. LUBELL, J.S.C.

TO: