| Lape v Lape |
| 2009 NY Slip Op 06969 [66 AD3d 1405] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Pamela J. Lape, Respondent, v Daniel E. Lape,Appellant. |
—[*1] Levitt & Gordon, Esqs., New Hartford (Dean L. Gordon of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered November 19, 2009 in a divorce action. The order, inter alia, directed the parties to sellthe marital residence.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the directive that the parties shall be equally and jointly responsible for the expensesassociated with the marital residence after October 1, 2007 and as modified the order is affirmedwithout costs.
Memorandum: Defendant appeals from a postjudgment order in this divorce action that, interalia, granted that part of plaintiff's cross motion seeking an order directing the parties to sell themarital residence and to divide the net sale proceeds equally. In addition, Supreme Courtdirected that the parties shall be equally and jointly responsible for the expenses associated withthe marital residence after October 1, 2007. We reject defendant's contention that the court erredin ordering the sale of the marital residence. According to the parties' stipulation, which wasincorporated but not merged into the judgment of divorce, plaintiff was required to refinance theparties' home equity loan in her own name and to pay defendant a $40,000 distributive awardwithin 90 days of the date on which the parties entered into the stipulation. The stipulationfurther provided that, in the event that plaintiff was unable to do so despite her good faith efforts,the marital residence was to be sold and the net sale proceeds were to be equally divided. Therecord establishes that plaintiff made a good faith effort to refinance the home equity loan butwas unable to complete that refinancing within the 90-day period set forth in the stipulationbecause of a previously unknown title problem. Thus, pursuant to the clear terms of thestipulation, the parties were required to sell the marital residence.
We agree with defendant, however, that the court erred in directing that the parties shall beequally and jointly responsible for the expenses associated with the marital residence afterOctober 1, 2007, and we therefore modify the order accordingly. The stipulation provided thatdefendant would be responsible for one half of such expenses only until he moved out of themarital residence. Because the parties' stipulation is an independent contract subject to theprinciples of contract law and the terms of the stipulation are unambiguous (see Hannigan v Hannigan, 50 AD3d957, 957-958 [2008]; Stevens vStevens, 11 AD3d 791, 792 [2004]), we conclude that the [*2]court erred in fashioning a remedy outside the four corners of thestipulation (see generally Kosnac vKosnac, 60 AD3d 636, 637 [2009]; Ross v Ross, 16 AD3d 713, 714 [2005]). Present—Scudder,P.J., Martoche, Peradotto, Carni and Gorski, JJ.