Barzin v. Barzin

Decision Date01 February 1990
Citation158 A.D.2d 769,551 N.Y.S.2d 361
PartiesRichard L. BARZIN, Appellant, v. Kay D. BARZIN, Respondent.
CourtNew York Supreme Court — Appellate Division

Stewart T. Schantz, P.C. (Stewart T. Schantz, of counsel), Highland, for appellant.

Steiman & Steinberg (Mickey A. Steiman, of counsel), Poughkeepsie, for respondent.

Before KANE, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.

KANE, Justice Presiding.

Appeal from that part of an order of the Supreme Court (Lynn, J.H.O.), entered February 24, 1989 in Ulster County, which denied plaintiff's motion to set aside an oral stipulation and to restore his prior cross motion.

The 1976 marriage of plaintiff and defendant produced one child, a daughter born in June 1979, before it culminated in a judgment of divorce entered in March 1987. Child support was provided for in accordance with terms set forth in a separation agreement, as well as a February 1987 open-court stipulation, and required plaintiff to pay $200 a week. Child support was to be adjusted annually "commencing on April 15, 1987, by the same percentage that the Husband's net income shall have increased during the preceding calendar year, or by the sum of six percent (6%) over the prior calendar year, whichever amount is greater". It was also provided that, "[f]or purposes of [child support], the term 'net income' shall mean monies received by the Husband, from whatever source derived, less applicable federal, state and local income taxes actually paid or actually due and owing".

In accordance with this agreement, and based on plaintiff's 1986 Federal income tax return which showed significant capital gains income that year from plaintiff's sale of stock in Wickhen Products, Inc., defendant moved in Supreme Court for an order directing plaintiff to pay $703 per week in child support for 1987. In response, plaintiff cross-moved for clarification of the amount of child support owing for 1987 and the method used to calculate child support thereafter, arguing that the proceeds from his stock sale were improperly included as income by defendant.

Thereafter, an open-court stipulation was placed on the record at a June 1988 hearing. The stipulation provided that plaintiff's Wickhen stock proceeds would not be treated as income in computing child support, that plaintiff would pay $15,000 in child support for 1987 in addition to the $10,400 required under the separation agreement, and that plaintiff would pay an estimated $14,000 in child support for 1988, in accordance with the separation agreement's escalation clause and subject to review of plaintiff's 1987 Federal income tax return.

In August 1988, plaintiff commenced an action seeking to set aside the child support formula and thereafter moved to set aside the June 1988 stipulation on the grounds, inter alia, that it was entered into by mistake and its terms were unconscionable and against public policy. Plaintiff also moved for reinstatement of his previous cross motion for clarification of the amount and methodology used to calculate child support for 1987. Supreme Court denied the motion and this appeal followed.

We affirm. As a general rule, a stipulation entered into in open court, with the parties and counsel present, becomes binding and is "not lightly cast aside" (Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; see, CPLR 2104). A stipulation between parties in a matrimonial action may be set aside where it is manifestly unfair to one party because of the other's overreaching or where its terms are unconscionable or constitute fraud, collusion,...

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26 cases
  • Diel v. Diel
    • United States
    • New York Supreme Court
    • April 18, 2013
    ...well settled that: “A stipulation entered into in open court, with the parties and counsel present, is a binding contract ( see, Barzin v. Barzin, 158 A.D.2d 769). Only where there is sufficient cause to invalidate a contract, such as fraud, collusion, mistake, or accident, will a party be ......
  • Vermilyea v. Vermilyea
    • United States
    • New York Supreme Court — Appellate Division
    • February 1, 1996
    ...were represented by counsel and both parties unequivocally agreed to the terms in the agreement in open court (see, Barzin v. Barzin, 158 A.D.2d 769, 770, 551 N.Y.S.2d 361, lv. dismissed 77 N.Y.2d 834, 566 N.Y.S.2d 588, 567 N.E.2d 982). The acceptance of the pension figure may have been imp......
  • HSBC Bank USA, Nat'l Ass'n v. Wielgus
    • United States
    • New York Supreme Court — Appellate Division
    • August 12, 2015
    ...; Matter of Mercer, 113 A.D.3d 772, 979 N.Y.S.2d 608 ; Esposito v. Podolsky, 104 A.D.3d 903, 905, 963 N.Y.S.2d 664 ; Barzin v. Barzin, 158 A.D.2d 769, 770, 551 N.Y.S.2d 361 ; see also Bailey v. New York City Tr. Auth., 196 A.D.2d 854, 602 N.Y.S.2d 177 ). “More than mere or conclusory allega......
  • McKelvey v. McKelvey
    • United States
    • New York Supreme Court — Appellate Division
    • April 2, 2015
    ...duress, overreaching or unconscionability” (Fox v. Merriman, 307 A.D.2d 685, 686, 763 N.Y.S.2d 377 [2003] ; see Barzin v. Barzin, 158 A.D.2d 769, 770, 551 N.Y.S.2d 361 [1990], lv. dismissed 77 N.Y.2d 834, 566 N.Y.S.2d 588, 567 N.E.2d 982 [1991] ). Although the husband chose to attend the in......
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