| Lewis v Lewis |
| 2010 NY Slip Op 01235 [70 AD3d 1432] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Stefany V. Lewis, Respondent, v John F. Lewis,Appellant. |
—[*1] Stefany V. Lewis, plaintiff-respondent pro se. Peter J. DiGiorgio, Jr., Law Guardian, Utica, for Matthew L. and Rachel L.
Appeal from a judgment of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered April 30, 2008 in a divorce action. The judgment, inter alia, awarded maintenance toplaintiff.
It is hereby ordered that the judgment so appealed from is modified on the law by vacatingthe 8th through 21st and 34th decretal paragraphs and as modified the judgment is affirmedwithout costs, and the matter is remitted to Supreme Court, Oneida County, for furtherproceedings in accordance with the following memorandum: Defendant appeals from a judgmentof divorce that, inter alia, directed him to pay to plaintiff the sum of $750 per month asmaintenance for a period of 10 years and granted plaintiff's request for attorney's fees in the sumof $6,500. At the outset, we agree with defendant that Supreme Court erred in failing to set forththe reasons for its determination to award maintenance to plaintiff (see Hartnett vHartnett, 281 AD2d 900, 901 [2001]). Consequently, "intelligent review of the amount andduration of the maintenance award . . . is not possible" (id.; see Otto vOtto, 150 AD2d 57, 61 [1989]). We therefore modify the judgment accordingly, and weremit the matter to Supreme Court for a new determination with respect to maintenance and toset forth the reasons for its determination.
We reject defendant's contention that the court erred in incorporating the oral stipulation ofthe parties with respect to child custody into the judgment. In support of his contention,defendant relies upon Domestic Relations Law § 236 (B) (3), pursuant to which anagreement by the parties in a divorce action is enforceable if the agreement is, inter alia, inwriting and subscribed by the parties (see generally CPLR 2104). "That reliance ismisplaced, however, because '[t]he requirements of Domestic Relations Law § 236 (B) (3)pertain to stipulations [that affect] the equitable distribution of marital property' " (Kelly v Kelly, 19 AD3d 1104,1106 [2005], appeal dismissed 5 NY3d 847, 6 NY3d 803 [2005]; see Charland vCharland, 267 AD2d 698, 699 [1999]). We agree with defendant, however, that the oralstipulation concerning the distribution of certain items of personal property was improperlyincorporated into the judgment. That stipulation was transcribed into the record but was notreduced to writing, subscribed by the parties or acknowledged, as required by DomesticRelations Law § 236 (B) (3). We therefore further modify the judgment accordingly, andwe direct Supreme Court upon remittal to make a new determination with respect to thedistribution of the items of personal property distributed in the 8th through 21st decretalparagraphs following a further hearing, if necessary (see generally James v James, 202AD2d 1006 [1994]).
We reject defendant's further contention that the court abused its discretion in grantingplaintiff's request for attorney's fees. Plaintiff presented the invoices for her attorney's fees, andthe evidence presented by the parties concerning their respective financial conditions supportsthe award of attorney's fees to plaintiff (see McBride-Head v Head, 23 AD3d 1010 [2005]).
Finally, defendant contends that he was denied effective assistance of counsel. In the contextof civil litigation, however, such a contention will not be considered absent extraordinarycircumstances, and such circumstances are not present here (see Matter of Hares v Walker, 8 AD3d 1019, 1020 [2004]).
All concur except Carni, J., who dissents in part in accordance with the followingmemorandum.
Carni, J. (dissenting in part). I respectfully dissent in part. I cannot agree with the majoritythat the requirements of Domestic Relations Law § 236 (B) (3) pertain only to stipulationsthat affect the equitable distribution of marital property. In my view, the oral stipulation withrespect to custody of the parties' children was invalid because it failed to comply with therequirements of section 236 (B) (3). That section expressly includes agreements that provide "forthe custody, care, education and maintenance of any child[ren] of the parties." (Id.)Further, the Court of Appeals stated in Matisoff v Dobi (90 NY2d 127, 132 [1997]) thatsection 236 (B) (3) "authorizes spouses or prospective spouses to contract out of the elaboratestatutory system and provide for matters such as inheritance, distribution or division of property,spousal support, and child custody and care in the event that the marriage ends"(emphasis added).
I therefore would further modify the judgment by vacating the 2nd through 7th decretalparagraphs, and I would further direct Supreme Court upon remittal to make a new determinationwith respect to custody following a further hearing, if necessary. Present—Martoche, J.P.,Smith, Fahey, Carni and Pine, JJ.