New,York,Nassau,County,Divorce law New York Nassau County Divorce Agreement Division Of Propert
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Lawrence Schwartz, Respondent, v. Janet A. Schwartz, AppellantSupreme Court of New York, Appellate Division, Second DepartmentSeptember 25, 1989Facts: Prior to commencement of an action fordivorce, the parties entered an agreement for the division of their propertythat expressly provided that the agreement would not be modified by or mergedinto any divorce judgment. The agreementwas challenged by the husband and upheld. The wife was later granted hercounterclaim for divorce. The divorcejudgment ordered that the agreement would survive and not be merged. The husband subsequently filed a motion forresettlement of the divorce, contending the wife conceded that the agreementwould be merged. The Supreme Court granted the husband the relief requested. Wife appealed a judgment from the Supreme Courtin Nassau County, which directed that an agreement she had with husband bemerged into their divorce judgment and that the agreement should not survivethe divorce judgment. She also appealedthe Supreme Courts denial of her motion to further resettle the divorcejudgment.Issue: Whether Supreme Court erred in resettling the judgment of divorce? The Court states that the plaintiffis directed to submit an amended judgment reflecting this decision and theprior judgment. A resettled judgment ofdivorce was entered upon the order on August 24, 1987, stating, inter alia,that the agreement "shall be merged herein and shall be extinguished sothat the same shall not survive." This Court finds that the Supreme Courterred in resettling the judgment of divorce. A review of the trial transcript reveals that the defendant's attorneyobviously erred in asking the plaintiff's attorney to "concede" thatthe agreement be "merged" into the judgment of divorce, and that theintent of the parties when executing the agreement was that it survives ajudgment of divorce. This is evidencedby the fact that the agreement itself requires that it be presented as evidenceat any divorce proceeding and requires that it be incorporated by reference andnot merged into any judgment of divorce. The fact that the word "merged" was used instead of"incorporated" was even overlooked by the Trial Judge, who signed theoriginal judgment of divorce, which incorporated the agreement. Thus, equity should beinvoked here, as the result of the merger without the express incorporation ofthe provisions of the agreement into the judgment would be unconscionable. Sucha result would be inconsistent with the clear intention of the parties as setforth in the unambiguous terms of the agreement, which was adjudicated to be avalid and enforceable contract by the order of the Supreme Court, Nassau County,dated May 21, 1986. The defendant wouldlose valuable property rights in the marital residence when it is clear she hascomplied with all her obligations under the agreement, including the forfeitureof all maintenance from the date of the agreement. In this case, the mistake of thedefendant's attorney in saying "merged" when he meant to say"incorporated" was so blatant that the plaintiff's attempt to gain anunfair advantage by reason of the one misspoken word is tantamount to "anevasion of a contract; not its fulfillment and will not be countenanced by thiscourt.Conclusion: The court dismissed the appeal ofthe denial of the wife's motion to further resettle the divorce judgment. Thecourt vacated the resettled divorce judgment and reinstated the originaldivorce judgment.Disclaimer:These summaries are provided by the SRIS LawGroup. They represent the firmsunofficial views of the Justices opinions. The original opinions should be consulted for their authoritativecontent
New,York,Nassau,County,Divorce