Fulginiti v. Fulginiti

• Decision Date: 09 April 2015
• Docket Number: 519499.
• Citation: 4 N.Y.S.3d 780,127 A.D.3d 1382,2015 N.Y. Slip Op. 03017
• Parties: Tina M. FULGINITI, Respondent, v. James FULGINITI, Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1382

4 N.Y.S.3d 780

2015 N.Y. Slip Op. 03017

Tina M. FULGINITI, Respondent

v.James FULGINITI, Appellant.

519499.

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

April 9, 2015.

Pro Bono Appeals Program, Albany (Maria T. Vullo of counsel), for appellant.

Ross Law Office, Middleburgh (Daniel Ross of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

DEVINE, J.

Appeals (1) from a judgment of the Supreme Court (Bartlett, J.), entered December 4, 2013 in Schoharie County, granting plaintiff a divorce and ordering, among other things, equitable distribution of the parties' marital property, upon decisions of the court, and (2) from an order of said court, entered March 11, 2014 in Schoharie County, which, upon reargument, adhered to its original decision.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1991 and are the parents of three children. The wife commenced this divorce action in August 2010, alleging that she had been subjected to cruel and inhuman treatment. The husband answered and counterclaimed for divorce upon the same grounds. The parties appeared before Supreme Court in July 2012 and entered into a stipulation in which various issues were addressed, allegedly including a commitment by the husband to withdraw his answer and permit a divorce on the ground stated in the wife's complaint. Although the husband was proceeding pro se at the time, he retained counsel for the ensuing trial on unresolved issues pertaining to maintenance and equitable distribution.

Supreme Court issued a decision after trial in May 2013, finding that the wife was entitled to a divorce on the ground stated in the complaint, distributing the marital property, directing the husband to pay durational maintenance, and referring issues regarding custody and child support to Family Court for resolution. The husband moved for renewal and/or reargument in July 2013 and asserted, among other things, that he had never agreed to withdraw his answer and permit a divorce on the ground stated in the complaint. Supreme Court granted that part of the motion seeking reargument and, upon reargument, adhered to its original decision.

Supreme Court then issued a judgment of divorce incorporating the terms of its May 2013 decision, as well as a qualified domestic relations order pertaining to the husband's retirement benefit. In a separate order, Supreme Court granted the wife's application for an award of counsel fees. Supreme Court further issued an order scheduling a hearing upon the wife's motion to hold the husband in contempt for his failure to pay maintenance and counsel fees. The husband appeals from the divorce judgment.¹ The husband separately appeals from the order addressing his motion for renewal and reargument, which was not entered until March 2014.

The husband initially asserts that he did not enter into a valid stipulation. CPLR 2104 provides that agreements relating to any matter in an action are valid when “made between counsel in open court.” Contrary to the husband's argument, CPLR 2104 applies because the stipulation was placed on the record and arose in the context of “a court convened, with or without a jury, to do judicial business” (–Matter of Dolgin Eldert Corp., 31 N.Y.2d 1, 4–5, 334 N.Y.S.2d 833, 286 N.E.2d 228 [1972] ; accord Diarassouba v. Urban, 71 A.D.3d 51, 55, 892 N.Y.S.2d 410 [2009], lv. dismissed 15 N.Y.3d 741, 906 N.Y.S.2d 803, 933 N.E.2d 201 [2010] ). Moreover, while CPLR 2104 refers to open court stipulations made by counsel, the husband was free to enter into such a stipulation without counsel given that he knowingly elected to proceed pro se (see Liquori v. Liquori, 106 A.D.3d 1249, 1250–1251, 966 N.Y.S.2d 543 [2013] ; Jacobs v. Jacobs, 229 A.D.2d 712, 714, 645 N.Y.S.2d 342 [1996] ). In short, we do not agree with the husband that the stipulation as a whole was defective.

That being said, the question remains as to whether the husband agreed to withdraw his answer as part of the stipulation. A valid stipulation must be construed “as an independent contract subject to settled principles of contractual interpretation” (McCoy v. Feinman, 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ; see Dagliolo v. Dagliolo, 91 A.D.3d 1260, 1260, 937 N.Y.S.2d 466 [2012] ). “As with a contract, courts should not disturb a valid stipulation absent a showing of good cause such as fraud, collusion, mistake or duress; or unless the agreement is unconscionable or contrary to public policy; or unless it suggests an ambiguity indicating that the words did not fully and accurately represent the parties' agreement” (McCoy v. Feinman, 99 N.Y.2d at 302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [citations omitted]; see Matter of Kaczor v. Kaczor, 101 A.D.3d 1403, 1404, 956 N.Y.S.2d 650 [2012] ).

The parties engaged in extensive negotiations regarding equitable distribution, maintenance and child support and, while they undoubtedly resolved many of those issues, there is no succinct and comprehensive summation of the terms of their agreement. What is clear, however, is that the record is essentially silent as to the fate of the husband's answer. The only reference thereto was a brief comment by counsel for the wife, who expressed his belief that the husband had agreed to withdraw his answer and “go forward” on the complaint. The husband never confirmed that belief, nor were its implications explained to him. Silence by a pro se litigant on a seemingly offhand remark in the midst of involved negotiations cannot be said to be misleading and “may not be translated into acceptance merely because the offer purports to attach that effect to it,” creating an ambiguity in the terms of the stipulation (Matter of Albrecht Chem. Co. [Anderson Trading Corp.], 298 N.Y. 437, 440, 84 N.E.2d 625 [1949] ; compare Owens v. Lombardi, 41 A.D.2d 438, 440–441, 343 N.Y.S.2d 978 [1973], lv. denied 33 N.Y.2d 515, 348 N.Y.S.2d 1026, 302 N.E.2d 554 [1973] ). The husband gave no indication that he understood the stipulation to include a commitment to withdraw his answer, telling Supreme Court that he found the stipulation as a whole acceptable despite having “[a] million” questions about it. Thereafter, while the husband retained counsel and submitted to a trial on unresolved economic issues, he repeatedly asserted that he had not withdrawn his answer and sought reargument of Supreme Court's finding that he had done so (cf. Hallock v. State of New York, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ). Given the paucity of evidence to suggest that the husband actually agreed to withdraw his answer as part of the stipulation, Supreme Court erred in construing the stipulation in that manner (see e.g. Anostario v. Anostario, 255 A.D.2d 777, 779–780, 680 N.Y.S.2d 279 [1998] ). Indeed, because the record establishes that the parties never came to a “meeting of the minds as to the essential terms of the” stipulation, it is not a binding agreement in any respect (May v. Wilcox, 182 A.D.2d 939, 939, 582 N.Y.S.2d 294 [1992] ; see Winiarski v. Duryea Assoc., LLC, 14 A.D.3d 697, 698, 789 N.Y.S.2d 510 [2005] ; compare Manning v. Manning, 97 A.D.2d 910, 911, 470 N.Y.S.2d 744 [1983] ).

There...