Donnarumma v. Donnarumma
| Decision Date | 09 October 1979 |
| Parties | Rose Ann DONNARUMMA, Respondent, v. Angelo DONNARUMMA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Wimpfheimer & Sherman, Mineola (Charles S. Sherman, Mineola, of counsel), for appellant.
Gerald S. Jacobs, Mineola, for respondent.
Before LAZER, J. P., and GULOTTA, COHALAN and MARTUSCELLO, JJ.
MEMORANDUM BY THE COURT.
In an action, Inter alia, for a divorce, defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County, entered March 27, 1979 which, Inter alia, rescinded the separation agreement of the parties and awarded the plaintiff counsel fees in the sum of $1,500.
Judgment modified, on the law, by deleting therefrom the twelfth decretal paragraph thereof, which awarded plaintiff a counsel fee. As so modified, judgment affirmed insofar as appealed from, with costs to the plaintiff and action remanded to Special Term for a hearing with regard to the counsel fee and the entry of an appropriate amended judgment.
The trial court properly rescinded the separation agreement of the parties. Its terms were such as to raise a clear inference of overreaching in the execution on the part of defendant husband (see Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849). Nor can it be said that the trial court acted improperly in restoring plaintiff to her rights in a joint bank account and properties which had been owned by the parties as tenants by the entirety. These rights were surrendered by plaintiff without consideration in the separation agreement. Rescission of the agreement placed her in Status quo ante.
Moreover, defendant failed to meet the burden of proof necessary to overcome the presumption of a gift both as to the bank account and the real property. His proof was not "clear and convincing" so as to rebut the presumption of a gift (see Matter of Coddington, 56 A.D.2d 697, 391 N.Y.S.2d 760).
The award of custody of the parties' children to plaintiff was also justified. No showing of unfitness was required despite the children's six-month residence with the father. His custody of the children had been asserted pursuant to the rescinded separation agreement rather than as the result of a freely entered agreement. The custody award by the court was in the best interests of the children given the linguistic and other limitations of defendant and those family members who would assist with...
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Montoya v. Montoya
...paragraphs ineffective. 3. Two related articulation requests were denied because they were redundant. 4. See Donnarumma v. Donnarumma, 72 App. Div. 2d 545, 420 N.Y.S.2d 729 (1979) (holding that attorney's fee award made pursuant to New York Domestic Relations Law § 237 for legal services re......
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Lopes v. Lopes
...Second Department, spell out the need for a matrimonial action to exist as a condition of a counsel fee award. In Donnarumma v. Donnarumma, 72 A.D.2d 545, 420 N.Y.S.2d 729, the Court stated that counsel fees under Domestic Relations Law 237 may only be awarded in a matrimonial action. In La......
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Kenyon v. Kenyon
...plaintiff withdrew the only action seeking the type of relief specified therein, the statute is inapplicable (see, Donnarumma v. Donnarumma, 72 A.D.2d 545, 420 N.Y.S.2d 729). Judgment modified, on the law, without costs, by changing the effective date contained in the third decretal paragra......
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Korol v. Korol
...fees, as provided by DRL Section 237, is improper in an action to rescind a separation agreement. In Donnarumma v. Donnarumma, 72 A.D.2d 545, 420 N.Y.S.2d 729 (2d Dept. 1979), the Court found that an action to rescind a separation agreement did not constitute a matrimonial action. See also ......