M. DEEP, UTICA, FOR DEFENDANT-APPELLANT.
LUCILLE M. RIGNANESE, ROME, FOR PLAINTIFF-RESPONDENT.
G. KOSLOSKY, ATTORNEY FOR THE CHILDREN, UTICA.
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND
from a judgment of the Supreme Court, Oneida County (Joan E.
Shkane, A.J.), entered June 3, 2015. The judgment, inter
alia, granted primary physical custody of the parties'
children to plaintiff.
hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating every decretal
paragraph, except for the 2nd, 16th and 17th decretal
paragraphs, and a new trial is granted on the issues of
custody, visitation, child support, and equitable
Defendant appeals from a judgment of divorce that, inter
alia, granted primary physical custody of the parties'
children to plaintiff. On appeal, defendant contends that
Supreme Court committed numerous errors, and that the
judgment of divorce fails to conform with the mandatory
provisions of the Domestic Relations Law and is deficient as
it pertains to the issues of custody, visitation, child
support, and equitable distribution. We agree and therefore
modify the judgment by vacating every decretal paragraph
therein, except for the 2nd decretal paragraph granting the
divorce, the 16th decretal paragraph allowing the parties to
resume the use of their premarriage surnames and the 17th
decretal paragraph regarding service. In light of the
pervasive errors in this case, we grant a new trial on the
above-mentioned issues before a different justice.
conclude that the court erred in refusing to allow the
parties to enter into a settlement agreement. In the midst of
trial, the parties' attorneys indicated that an agreement
had been reached granting custody to defendant and regular
visitation to plaintiff. It became apparent that the parties
agreed on all the material terms of the proposed agreement
and disagreed only about the location where pickups for
visitation would occur. At that point, the court stated that
it was "very unhappy" with the length of the trial
and immediately terminated all discussions concerning the
parties' agreement. When defendant's attorney
attempted to explain his position, the court cut him off,
thereby virtually assuring the failure of the parties'
agreement. The trial continued and, after the close of proof
that same day, the court granted custody to plaintiff without
regular visitation to defendant.
settlement agreements are judicially favored and are not to
be easily set aside" (Simkin v Blank, 19 N.Y.3d
46, 52; see Maving v Maving, 125 A.D.3d 1290, 1290).
As a general matter, open court stipulations are especially
favored by the courts inasmuch as they promote efficient
dispute resolution, timely management of court calendars, and
the "integrity of the litigation process"
(Hallock v State of New York, 64 N.Y.2d 224, 230).
In matrimonial actions, however, an open court stipulation is
unenforceable absent a writing that complies with the
requirements for marital settlement agreements (see Tomei
v Tomei, 39 A.D.3d 1149, 1150; see generally
Domestic Relations Law § 236 [B] ). More
particularly, to be valid and enforceable, marital settlement
agreements must be "in writing, subscribed by the
parties, and acknowledged or proven in the manner required to
entitle a deed to be recorded" (§ 236 [B] ).
Under the unusual circumstances of this case, i.e., where the
parties evinced their agreement in open court to the material
terms of a settlement agreement, there were no indicia of
fraud or manifest injustice, and the court prevented the
parties from ratifying their agreement but instead made a
ruling directly contrary to the terms of that agreement, we
conclude that the court erred in granting primary physical
custody to plaintiff. That error was compounded when the
court entered a visitation schedule that erroneously denied
meaningful visitation to defendant (see Williams v
Williams, 100 A.D.3d 1347, 1348-1349; Matter of
Brown v Brown, 97 A.D.3d 673, 674; see generally
Weiss v Weiss, 52 N.Y.2d 170, 175).
those were the only errors, we would modify the judgment by
vacating only those provisions pertaining to custody and
visitation. We further conclude, however, that the judgment
is deficient for additional reasons. Specifically, it fails
to conform with the mandatory provisions of the Domestic
Relations Law pertaining to child support and equitable
agree with defendant that the court erred in failing to award
her child support arrears. Before trial, on August 23, 2013,
defendant made an application for an order awarding her child
support and other relief. That application resulted in a
temporary order awarding her child support in the amount of
$385.00 every two weeks, effective the following Friday. That
was error. An order directing the payment of child support
"shall be effective as of the date of the application
therefor, and any retroactive amount of child support due
shall be support arrears" (Domestic Relations Law
§ 240  [j]). Thus, the court "should have
awarded... child support retroactive to [August 23, 2013],
the date of the application therefor" (DiSanto v
DiSanto, 198 A.D.2d 838, 838; see Petroci v
Petroci, 130 A.D.3d 1573, 1574). Moreover, as the
parties acknowledged at oral argument of this appeal, the
final judgment contains no provision at all for child
support. That was also error (see generally §
we note that in any matrimonial action the court "shall
determine the respective rights of the parties in their
separate or marital property, and shall provide for the
disposition thereof in the final judgment" (Domestic
Relations Law § 236 [B] ), and we ...