Campello v. Alexandre

• Decision Date: 22 November 2017
• Citation: 155 A.D.3d 1381,65 N.Y.S.3d 348
• Parties: Murillo N. CAMPELLO, Appellant, v. Maria T. ALEXANDRE, Respondent.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1381
65 N.Y.S.3d 348

Murillo N. CAMPELLO, Appellant,
v.
Maria T. ALEXANDRE, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 22, 2017.

65 N.Y.S.3d 349

The Lama Law Firm, LLP, Ithaca (Luciano J. Lama of counsel), for appellant.

Williamson, Clune & Stevens, Ithaca (John H. Hanrahan III of counsel), for respondent.

Before: PETERS, P.J., GARRY, MULVEY, AARONS and PRITZKER, JJ.

GARRY, J.

155 A.D.3d 1381

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) entered into a stipulation of settlement in their divorce action that provided, among other things, that the husband would make maintenance payments to the wife. As pertinent here, the stipulation further provided that the husband's maintenance obligation would terminate if the wife cohabited with another man under certain circumstances. The stipulation was incorporated but not merged into the parties' September 2014 judgment of divorce. In August 2016, the husband moved by order to show cause to terminate his maintenance obligation on the ground that the wife was cohabiting with another man. Supreme Court found that this contention should have been raised in a plenary action and denied the motion without prejudice. The husband appeals.

A settlement agreement that has been incorporated but not

155 A.D.3d 1382

merged into a judgment of divorce is an independent contract binding upon both parties (see Merl v. Merl, 67 N.Y.2d 359, 362, 502 N.Y.S.2d 712, 493 N.E.2d 936 [1986] ; Allard v. Allard, 145 A.D.3d 1254, 1256, 43 N.Y.S.3d 580 [2016] ; Barlette v. Barlette, 95 A.D.3d 1624, 1624–1625, 945 N.Y.S.2d 475 [2012] ).¹ A party wishing to modify or rescind such an agreement after the entry of judgment must ordinarily commence a plenary action (see Grieco v. Grieco, 307 A.D.2d 488, 488, 761 N.Y.S.2d 750 [2003] ), although failure to do so is not always a fatal defect (see MacDonald v. Guttman, 72 A.D.3d 1452, 1455, 900 N.Y.S.2d 177 [2010] ; Banker v. Banker, 56 A.D.3d 1105, 1107 n. 2, 870 N.Y.S.2d 481 [2008] ; Brender v. Brender, 199 A.D.2d 665, 666 n. 2, 605 N.Y.S.2d 411 [1993] ). In contrast, a party seeking to enforce a settlement

65 N.Y.S.3d 350

agreement may do so by motion and need not commence a plenary action (see Caren EE. v. Alan EE., 124 A.D.3d 1102, 1103, 2 N.Y.S.3d 657 [2015] ; Rawlings v. Rawlings, 50 A.D.3d 998, 999, 857 N.Y.S.2d 187 [2008] ; Luisi v. Luisi, 6 A.D.3d 398, 400, 775 N.Y.S.2d 331 [2004] ; see also Bishopp v. Bishopp, 104 A.D.3d 1121, 1122, 962 N.Y.S.2d 503 [2013] ). Here, the husband does not seek to alter or rescind the stipulation of settlement, but rather to enforce the terms of the provision relative to his maintenance obligation. Thus, he was not required to commence a plenary action, and his motion should not have been denied on that basis.

Nevertheless, we affirm, finding that the motion was properly denied upon a different ground. The question presented by the husband's motion is strictly one of contractual interpretation—that is, whether the circumstances of the wife's cohabitation meet the requirements set out in the stipulation for the termination of the husband's maintenance obligation. There are no significant factual disputes; the parties agree as to the pertinent details of the wife's living situation, which are fully detailed in the record, and disagree only as to the resulting legal conclusions. In the interest of judicial economy, we exercise our independent authority to review the evidence and resolve the matter (see Lounsbury v. Lounsbury, 300...