Fox v. Merriman

Decision Date31 July 2003
Citation763 N.Y.S.2d 377,307 A.D.2d 685
PartiesKATHY L. FOX, Respondent,<BR>v.<BR>JOHN D. MERRIMAN, Appellant.
CourtNew York Supreme Court — Appellate Division

Cardona, P.J., Carpinello, Mugglin and Kane, JJ., concur.

Spain, J.

The 1986 marriage of the parties was terminated in a 2000 judgment of divorce which incorporated an oral stipulation of the parties made in open court on the day the trial was to commence. The stipulation provided, among other things, that (1) plaintiff would convey her interest in the marital residence to defendant but retain possession of said residence until the 2011 high school graduation date of the youngest of the parties' three children, (2) the household furniture was the property of defendant, (3) defendant would continue to pay the real estate taxes and any mortgage payments on the marital residence, (4) plaintiff would pay all other expenses associated with said residence, including routine maintenance, and (5) defendant would continue to pay child support at the rate previously set by court order. After Supreme Court received affirmative responses on the record from both plaintiff and defendant as to whether they understood the terms of the agreement, had voluntarily entered into the agreement, and were satisfied with the advice given by their respective counsel, the court approved the stipulation.

In May 2002, defendant moved to modify the judgment of divorce claiming that he was under pressure at the time, had received poor legal advice and the agreement was "unreasonable and fundamentally unfair." He also asserted that he is now financially unable to meet his obligations under the agreement. Supreme Court denied the motion without a hearing and defendant appeals.

A stipulation of settlement which is made in open court by parties who are represented by counsel and who unequivocally agree to its terms will not be set aside absent a showing that the stipulation was tainted by mistake, fraud, duress, overreaching or unconscionability (see Turk v Turk, 276 AD2d 953, 954 [2000]; Cantamessa v Cantamessa, 170 AD2d 792, 793 [1991]; Barzin v Barzin, 158 AD2d 769, 770 [1990], lv dismissed 77 NY2d 834 [1991]). Defendant's conclusory assertions that he was under pressure and acting under questionable legal advice are inconsistent with his unequivocal statements in open court. Moreover, he has not established that the terms of the agreement were manifestly unfair. To the contrary, the stipulation appears to be a balanced and reasoned effort to equitably distribute the incidents of the parties' marriage, as demonstrated by plaintiff's agreement to deed her interest in the marital residence, pay many expenses of upkeep and eventually relinquish possession of this major asset to defendant....

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7 cases
  • Hamilton v. Murphy
    • United States
    • New York Supreme Court — Appellate Division
    • December 2, 2010
    ... ... Yet defendant agreed to a 16 1/2-foot right-of-way and, however improvident he may now view that decision, such second thoughts are insufficient to set aside an otherwise valid agreement ( see Fox v. Merriman, 307 A.D.2d 685, 686-687, 763 N.Y.S.2d 377 [2003];913 N.Y.S.2d 375Turk v. Turk, 276 A.D.2d 953, 955, 714 N.Y.S.2d 566 [2000]; Robison v. Borelli, 239 A.D.2d at 657, 657 N.Y.S.2d 783; Vermilyea v. Vermilyea, 224 A.D.2d 759, 761, 636 N.Y.S.2d 953 [1996] ). Nor do we find merit in defendant's ... ...
  • McKelvey v. McKelvey
    • United States
    • New York Supreme Court — Appellate Division
    • April 2, 2015
    ... ... Weimer, 281 A.D.2d 989, 989, 722 N.Y.S.2d 328 [2001] ). Generally, a stipulation of settlement made in open court will not be set aside absent a showing that the stipulation was tainted by mistake, fraud, duress, overreaching or unconscionability 127 A.D.3d 1309(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 inquest without legal counsel, that alone does not require us to set ... ...
  • Libert v. Libert
    • United States
    • New York Supreme Court — Appellate Division
    • November 9, 2010
    ... ... "A stipulation of settlement which is made in open court by parties who are represented by counsel and who unequivocally agree to its terms will not be set aside absent a showing that the stipulation was tainted by mistake, fraud, duress, overreaching or unconscionability" ( Fox v. Merriman, 307 A.D.2d 685, 686, 763 N.Y.S.2d 377). "An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and ... ...
  • McCarthy v. McCarthy
    • United States
    • New York Supreme Court — Appellate Division
    • October 21, 2010
    ... ... "A stipulation of settlement which is made in open court by parties who are represented by counsel and who unequivocally agree to its terms will not be set aside absent a showing that the stipulation was tainted by mistake, fraud, duress, overreaching or unconscionability" ( Fox v. Merriman, 307 A.D.2d 685, 686, 763 N.Y.S.2d 377 [2003] [citations omitted]; accord Matter of Crouse v. Crouse, 53 A.D.3d 750, 753, 862 N.Y.S.2d 615 [2008] ). The stipulation here was made by the parties in open court after consultation with their attorneys, and the father unequivocally indicated his ... ...
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