| Birr v Birr |
| 2010 NY Slip Op 01401 [70 AD3d 1221] |
| February 18, 2010 |
| Appellate Division, Third Department |
| Christopher T. Birr, Appellant, v Lynda Burnett Birr,Respondent. |
—[*1] Lynda Burnett Birr, Schodack, respondent pro se. Thomas C. Hall, Law Guardian, Troy.
Malone Jr., J. Appeal from an order of the Supreme Court (Cholakis, J.), entered October 31,2008 in Rensselaer County, which denied plaintiff's motion to enforce an oral agreementbetween the parties.
Plaintiff commenced this action for divorce in July 2006. On April 27, 2007, the date theaction was set for trial, the parties placed an oral stipulation on the record in open courtaddressing issues of child custody, child support, visitation, spousal maintenance and equitabledistribution. The oral stipulation required plaintiff to withdraw his complaint and his custodypetition. The oral stipulation also required plaintiff's counsel to prepare a written stipulationincorporating the terms of the oral stipulation and possibly "additional terms in the nature ofboiler plate that would be typical to a separation agreement" that were not read into the record incourt. The parties acknowledged on the record their understanding that, upon execution of thewritten stipulation, its terms would then constitute a legally binding contract. The matter wasthen adjourned to another date certain for confirmation from counsel that the written stipulationhad been executed by both parties and that plaintiff was withdrawing the complaint and custodypetition.
Plaintiff's counsel subsequently requested and was granted a further adjournment. When thatadjourn date also passed without an executed stipulation being filed, Supreme Court [*2]set a final deadline and advised counsel that the action would bedismissed for failure to prosecute if the stipulation was not received. No written stipulation wasever executed or filed and Supreme Court dismissed the action when the final deadline passed.Thereafter, plaintiff moved to vacate the dismissal and restore the action to the calendar. Thatmotion was granted and, after the action was restored, plaintiff then moved to either have theterms of the oral stipulation "so-ordered" or to have defendant directed to execute a proposedwritten stipulation circulated by plaintiff's counsel. Supreme Court denied that motion, givingrise to this appeal by plaintiff. For the reasons stated below, we affirm.
"Pursuant to Domestic Relations Law § 236 (B) (3), an agreement such as thisopen-court stipulation of settlement must be 'in writing, subscribed by the parties, andacknowledged or proven in the manner required to entitle a deed to be recorded' " (Timperiov Timperio, 232 AD2d 857, 859 [1996]; accord Wetherby v Wetherby, 50 AD3d 1226, 1227 [2008]; Matter of Sbarra, 17 AD3d 975,976 [2005]; Lischynsky v Lischynsky, 95 AD2d 111, 114 [1983]; Hanford vHanford, 91 AD2d 829, 829-830 [1982]; Giambattista v Giambattista, 89 AD2d1057, 1057 [1982]; but see Rubenfeld v Rubenfeld, 279 AD2d 153, 156-159 [2001];Sanders v Copley, 151 AD2d 350, 351-353 [1989]; Harrington v Harrington, 103AD2d 356, 358-361 [1984]; see also Scheinkman, Practice Commentaries, McKinney'sCons Laws of NY, Book 14, Domestic Relations Law C236B:18). In our view, an oralstipulation placed on the record in open court does not, by itself, satisfy the requirements of theDomestic Relations Law. However, as we have recently and repeatedly acknowledged,"recitation of an oral stipulation into the record, followed by execution of a written opt-outagreement that stated that the parties adopted the terms of the stipulation 'as if the same werefully set forth' therein . . . satisfies the requirements of the Domestic RelationsLaw" (Cheruvu v Cheruvu, 59AD3d 876, 877 [2009]; see Dwyer v De La Torre, 252 AD2d 695, 695-696 [1998];Vermilyea v Vermilyea, 224 AD2d 759, 760 [1996]).
Here, however, the parties did not execute a written settlement stipulation, and the record onappeal neither contains nor mentions an executed, written agreement incorporating the terms ofthe oral agreement. In his brief, plaintiff's counsel claims that an opting-out affidavit wasexecuted by the parties but that it has "gone missing" from Supreme Court's file. In contrast, thebrief submitted by the Law Guardian states that the affidavit was believed to be unnecessary andwas therefore not filed. Defendant, in her pro se brief, denies that the affidavit was ever signed.Notably, these and other statements of fact alleged in the briefs are not included in the record onappeal and, therefore, are beyond our consideration (see Matter of Zippo v Zippo, 41 AD3d 915, 916 n [2007];Matter of D.B.S. Realty v New York State Dept. of Envtl. Conservation, 201 AD2d 168,173 [1994]). Accordingly, in the context of this matrimonial action, without proof in the recordof a valid opt-out agreement, the oral stipulation is unenforceable (see Harbour vHarbour, 243 AD2d 947, 949 [1997], lv dismissed 92 NY2d 845 [1998];compare Matter of Sbarra, 17 AD3d at 976).
We have considered plaintiff's remaining arguments and find them to be without merit.
Cardona, P.J., Rose and Garry, JJ., concur. Ordered that the order is affirmed, without costs.