Stimmel v. Stimmel

• Decision Date: 09 July 1990
• Citation: 163 A.D.2d 381,558 N.Y.S.2d 112
• Parties: Irving Jerry STIMMEL, Respondent, v. Toby STIMMEL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 112

558 N.Y.S.2d 112

163 A.D.2d 381

Irving Jerry STIMMEL, Respondent, v. Toby STIMMEL, Appellant.

Supreme Court, Appellate Division Second Department.

July 9, 1990.

Robert B. Shaw, New York City (Arlene S. Zwilling, of counsel), for appellant.

Biller & Bachner, Kew Garden (Larry Bachner, of counsel), for respondent.

Before EIBER, J.P., and SULLIVAN, BALLETTA and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Queens County (Zelman, J.), dated September 6, 1988, as denied her counterclaim for equitable distribution of marital property, and (2) so much of a judgment of the same court, also dated September 6, 1988, as granted the plaintiff husband a divorce and a money judgment against her and denied her equitable distribution.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is modified by deleting the fifth decretal paragraph thereof; as so modified, the judgment is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the amount to be awarded to the plaintiff husband representing overpayments in alimony in accordance herewith; and it is further,

ORDERED that the plaintiff husband is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].

On July 11, 1978, the plaintiff and the defendant entered into a stipulation of separation whereby, inter alia, the plaintiff agreed to pay the defendant alimony in the sum of $75 per week, the defendant was given sole ownership of the marital residence and the remaining real and personal marital property was divided between the parties. The ensuing judgment of separation dated September 18, 1978, further directed that the amount of alimony would be reduced by $25 per week in the event that the defendant earned in excess of $10,400 in any one calendar year. However, in the event that the defendant's weekly income thereafter dropped below $200, there would be no reduction for any such week.

The plaintiff commenced this action for a conversion divorce in February 1982. After a trial, the Supreme Court granted him a judgment of divorce on September 6, 1988. The divorce judgment provided, inter alia, for payment to the plaintiff of the principal sum of $6,500, which purportedly represented overpayments in alimony that the plaintiff had paid to the defendant in the period from 1982 through 1986 as a result of the defendant's income in those years exceeding the $10,400 ceiling established by the judgment of separation. The plaintiff had testified at the trial that he had first learned in mid-1987 that the defendant had been employed since at least 1982.

Contrary to the defendant's contention, the Supreme Court did not err in denying her equitable distribution of the marital property. Where, as here, the parties have entered into a valid agreement prior to the effective date of the statute providing for equitable distribution, which was intended to constitute a full settlement of all property rights between them, then equitable distribution is...