Jessup v. Weir

• Decision Date: 03 December 1990
• Citation: 562 N.Y.S.2d 552,168 A.D.2d 428
• Parties: Jeryl Dale JESSUP, Appellant, v. Edward WEIR, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 552

562 N.Y.S.2d 552

168 A.D.2d 428

Jeryl Dale JESSUP, Appellant, v. Edward WEIR, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 3, 1990.

Victor F. Villacara, Patchogue (Benjamin D. Russo, of counsel), for appellant.

Cahn Wishod Wishod & Lamb, Melville (Robert H. Cohen, Jeffrey D. Malkan and Eve Green Koopersmith, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, LAWRENCE and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to set aside a deed and to impose a constructive trust with respect to certain real property, the plaintiff appeals (1) from a judgment of the Supreme Court, Suffolk County (Lama, J.), entered March 17, 1989, which, after a nonjury trial, dismissed the complaint, and (2) as limited by her brief, from so much of an order of the same court, dated May 10, 1989, as upon granting her motion, in effect, for reargument, adhered to its prior determination.

ORDERED that the appeal from the judgment entered March 17, 1989, is dismissed, as that judgment was superseded by the order dated May 10, 1989, made upon reargument; and it is further,

ORDERED that the order dated May 10, 1989, is affirmed insofar as appealed from; and it is further,

ORDERED that the respondent is awarded one bill of costs.

Edward Weir and Jeryl Dale were married on September 6, 1970, and had two children, born in 1971 and 1976, respectively. During the marriage they purchased real property for their marital residence which they owned as tenants by the entirety. The parties had marital problems, and in January 1982 Jeryl Weir informed her husband that she had fallen in love with another man and wanted a divorce. On March 12, 1982, Edward Weir commenced an action for divorce against his wife on the ground of constructive abandonment. On March 25, 1982, the parties entered into a separation agreement which provided in pertinent part:

"WHEREAS, the Parties acknowledge that an action for divorce has been instituted by the husband herein and the wife acknowledges and admits to receipt of service of a Summons and Complaint in said divorce action; and

"WHEREAS, the wife herein admits that she has no defense against the complaint stated in said Summons and Complaint, and * * *

"The parties agree to sell the marital residence at the earliest time possible for an amount agreed upon by both Parties * * * The balance of the funds from the sale of real estate shall be split equally at the time of the closing between Husband and Wife".

On July 15, 1982, Jeryl Weir executed a deed conveying her interest in the marital residence to her husband, Edward Weir. A judgment of divorce was granted to Edward Weir on that date, i.e., July 15, 1982. The separation agreement dated March 25, 1982, was incorporated, but not merged, into the judgment. On July 25, 1982, Jeryl Dale remarried.

In August 1986, over four years later, Jeryl Dale Jessup, commenced the instant action against her former husband, Edward Weir, seeking, inter alia, to set aside the deed that she had executed on July 15, 1982, and to impose a constructive trust on the property. In her complaint, the plaintiff alleged, inter alia, that the defendant induced her to execute the deed by fraudulently representing to her that such a conveyance would "expedite and facilitate" the sale of the marital residence. The defendant denied the essential allegations of the complaint and alleged, as a complete defense, as follows:

"NINTH: * * * in or about May of 1982, plaintiff and defendant agreed to a modification of the Separation Agreement to the effect that the provisions concerning the sale and distribution of the sales proceeds of the subject premises were superseded by plaintiff's agreement to transfer to defendant all of her right, title and interest in and to...