McKelvey v. McKelvey

Citation6 N.Y.S.3d 760,127 A.D.3d 1308,2015 N.Y. Slip Op. 02830
Decision Date02 April 2015
Docket Number519376.
PartiesCatherine M. McKELVEY, Respondent, v. Jeffrey S. McKELVEY, Appellant.
CourtNew York Supreme Court Appellate Division

127 A.D.3d 1308
6 N.Y.S.3d 760
2015 N.Y. Slip Op. 02830

Catherine M. McKELVEY, Respondent
v.
Jeffrey S. McKELVEY, Appellant.

519376.

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

April 2, 2015.


6 N.Y.S.3d 761

Blatchly & Simonson, P.C., New Paltz (Bruce D. Blatchly of counsel), for appellant.

Rusk Wadlin Heppner & Martuscello, LLP, Kingston (Jason J. Kovacs of counsel), for respondent.

Before: LAHTINEN, J.P., GARRY, LYNCH and DEVINE, JJ.

Opinion

LYNCH, J.

127 A.D.3d 1308

Appeal from an order of the Supreme Court (Work, J.), entered January 9, 2014 in Ulster County, which denied defendant's motion to modify and/or partially vacate certain support provisions of a prior judgment.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were

6 N.Y.S.3d 762

married in 1980. In October 2009, when the wife commenced this action for a divorce, the parties had one unemancipated child. In November 2009, a Support Magistrate issued an order directing the husband to pay child support in the amount of $1,213 per month and nondurational spousal support in the amount of $2,787 per month. In June 2010, after the husband defaulted, Supreme Court held an inquest and, thereafter, issued findings of fact and conclusions of law and granted the wife a judgment of divorce. By the terms of the judgment, it is apparent that the parties appeared at the inquest and “agreed on financial issues.” Relevant here, the judgment also reflects that the parties agreed to incorporate the Support Magistrate's November 2009 order with regard to spousal and child support into the judgment. In September 2013, the father moved for an order to modify “and/or partially vacat[e]” the spousal support provision of the judgment. Supreme Court denied the motion without a hearing and this appeal ensued.

We find that Supreme Court properly declined to modify the judgment of divorce. Initially, we note that the husband does not explain why he waited more than three years to seek relief from the judgment (see Sieger v. Sieger, 51 A.D.3d 1004, 1006, 859 N.Y.S.2d 240 [2008], appeal dismissed 14 N.Y.3d 750, 898 N.Y.S.2d 541, 925 N.E.2d 579 [2010], lv. denied 14 N.Y.3d 711, 2010 WL 1854440 [2010] ; Weimer v. 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 aside...

To continue reading

Request your trial
2 cases
  • Rural Cmty. Coal., Inc. v. Vill. of Bloomingburg
    • United States
    • New York Supreme Court — Appellate Division
    • April 2, 2015
    ...urge in unanimity the opposite result, i.e., that the annexation should now be set aside. Given such agreement, if this was merely an 6 N.Y.S.3d 760attempt to delineate boundaries, it could be easily resolved. However, that would not overturn the municipal approvals that were granted many y......
  • In re Brett DD.
    • United States
    • New York Supreme Court — Appellate Division
    • April 2, 2015
    ...severely abused either Kiaunte or Matthew (see id.;see also Social Services Law § 384–b [8 ][a][iii][A] ). While we do not disagree 127 A.D.3d 1308that respondent's conduct here was beyond reprehensible, his depravity does not overcome the lack of a biological relationship with any of the m......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT