Jung v. Jung

• Citation: 171 A.D.2d 993,567 N.Y.S.2d 934
• Parties: David F. JUNG, Appellant, v. Johanne C. JUNG, Respondent.
• Decision Date: 28 March 1991
• Court: New York Supreme Court Appellate Division

Page 934

567 N.Y.S.2d 934

171 A.D.2d 993

David F. JUNG, Appellant, v. Johanne C. JUNG, Respondent.

Supreme Court, Appellate Division,

Third Department.

March 28, 1991.

Russo, Walsh & Walsh (Terrance M. Walsh, of counsel), Johnstown, for appellant.

Englert, Stillman & McHugh (Philip Stillman, of counsel), Schenectady, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and HARVEY, JJ.

LEVINE, Justice.

Appeal from an order of the Supreme Court (Brown, J.), entered September 5, 1990 in Fulton County, which, inter alia, denied plaintiff's motion to terminate his obligation to make maintenance payments to defendant.

Plaintiff commenced the instant divorce action in July 1985. In lieu of trial, the parties entered into an open-court stipulation of settlement in September 1987, which was thereafter incorporated but not merged into the judgment of divorce entered on May 10, 1988. That stipulation provided, inter alia, that plaintiff would pay defendant maintenance in the amount of $1,200 per month for one year and $1,000 per month for the next four succeeding years.

In November 1989, plaintiff moved for an order construing the language of the stipulation to mean that his maintenance obligation terminated upon defendant's remarriage. Defendant opposed the motion and cross-moved for a judgment for arrearages or, alternatively, an order holding plaintiff in contempt. Supreme Court then denied plaintiff's motion and partially granted defendant's cross motion, awarding her judgment for accrued arrearages in the amount of $10,000. This appeal by plaintiff followed.

We affirm. It is well established that while a spouse, upon remarriage, may not compel maintenance from a former spouse, an agreement requiring maintenance to continue after remarriage is not against public policy and is enforceable (see, Fredeen v. Fredeen, 154 A.D.2d 908, 546 N.Y.S.2d 60; Scibetta v. Scibetta-Galluzzo, 134 A.D.2d 823, 824, 521 N.Y.S.2d 584; Jacobs v. Patterson, 112 A.D.2d 402, 403, 492 N.Y.S.2d 59; Gush v. Gush, 9 A.D.2d 815, 815-816, 192 N.Y.S.2d 678). Here, plaintiff's then counsel, who placed the support terms on the record, stated that "it is understood [that] * * * maintenance shall terminate at the end of five years * * * or may be extended upon [defendant's] application * * * if she establishes at that time that she is physically unable to support and maintain herself". At that point, defendant's counsel stated "Period" and plaintiff's counsel responded "Period". Following a discussion off the record, Supreme Court described its understanding of the maintenance provision as "unconditional for [a] five-year period" (emphasis supplied), and plaintiff's counsel agreed that the court's interpretation was correct. Thereafter, in...