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Bruzzese v. Bruzzese

Supreme Court of New York, Second Department

July 12, 2017

John Bruzzese, appellant,
v.
Sylvia Bruzzese, defendant-respondent; Peter D. Barlet, et al., nonparty-respondents. Index No. 6760/11

          Argued-May 25, 2017

         D52622 M/htr

          Meth Law Offices, P.C., Chester, NY (Michael D. Meth and Evan D. Zucker of counsel), for appellant.

          Steven H. Klein and Associates, P.C., Poughkeepsie, NY (James P. McEleney of counsel), for defendant-respondent.

          Peter D. Barlet, Warwick, NY, nonparty-respondent pro se.

          Carl D. Birman, White Plains, NY, attorney for the child Johnny.

          George E. Reed, Jr., White Plains, NY, attorney for the child Lauren.

          RANDALL T. ENG, P.J. JOHN M. LEVENTHAL SANDRA L. SGROI JOSEPH J. MALTESE, JJ.

          DECISION & ORDER

         Appeals by the plaintiff from (1) a money judgment of the Supreme Court, Orange County (Andrew P. Bivona, J.), dated March 20, 2015, (2) an order of that court (Lori Currier Woods, J.) dated June 23, 2015, (3) an order of that court (Lori Currier Woods, J.) dated August 24, 2015, (4) a second order of that court (Lori Currier Woods, J.) dated August 24, 2015, and (5) stated portions of ajudgment of divorce of that court (Lori Currier Woods, J.) dated August 25, 2015. The money judgment, upon a decision of that court (Andrew P. Bivona, J.) dated December 30, 2014, made after a nonjury trial, is in favor of nonparty Peter D. Barlet and against the plaintiff in the principal sum of $8, 675.30. The order dated June 23, 2015, upon the decision dated December 30, 2014, granted the motion of nonparty Christine K. Wienberg for leave to enter a money judgment in favor of her and against the plaintiff in the principal sum of $40, 004.50. The first order dated August 24, 2015, upon the decision dated December 30, 2014, granted the defendant's motion for leave to enter a money judgment in the favor of nonparty Klein Varble & Associates, P.C., and against the plaintiff in the principal sum of $44, 033.20. The second order dated August 24, 2015, upon the decision dated December 30, 2014, granted the defendant's motion to direct the plaintiff to pay her a $10, 000 distributive award within 30 days. The judgment of divorce, upon the decision dated December 30, 2014, inter alia, awarded custody of the parties' minor children to the defendant, made an equitable distribution of the parties' marital assets, and awarded the defendant child support and attorney's fees.

         ORDERED that the money judgment and the orders are affirmed; and it is further, ORDERED that the judgment of divorce is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof awarding a divorce to the defendant on the ground of cruel and inhuman treatment, and substituting therefor a provision awarding a divorce to the defendant on the ground of an irretrievable breakdown of the marital relationship for a period of at least six months, (2) by deleting the provision thereof directing the plaintiff to pay 75% of the children's future reasonable health care expenses not covered by insurance, and substituting therefor a provision directing the plaintiff to pay 65.4% of the children's future reasonable health care expenses not covered by insurance, and (3) by deleting the provision thereof awarding custody of the parties' minor children to the defendant; as so modified, the judgment is affirmed insofar as appealed from; and it is further, ORDERED that the matter is remitted to the Supreme Court, Orange County, for a hearing on the issue of custody of the parties' minor children and a new custody determination thereafter in accordance herewith; and it is further, ORDERED that pending the new custody determination, the child Lauren shall remain in the custody of the defendant, and the child Johnny shall remain in the custody of the plaintiff; and it is further, ORDERED that one bill of costs is awarded to the defendant and nonparty Peter D. Barlet, payable by the plaintiff.

         In 2011, the plaintiff commenced this action for a divorce and ancillary relief, and the defendant counterclaimed for a divorce. Prior to trial, the parties stipulated to a divorce on the ground of an irretrievable breakdown of the marital relationship pursuant to Domestic Relations Law § 170(7), and various issues were left for resolution, including custody, equitable distribution, and child support. After a nonjury trial, the Supreme Court, inter alia, awarded the defendant a divorce on the ground of cruel and inhuman treatment, awarded custody of the parties' minor children to the defendant, made an equitable distribution of the parties' assets, and awarded the defendant child support and attorney's fees. The plaintiff appeals.

         We reject the contention of nonparty Peter D. Barlet that the appeal from the money judgment dated March 20, 2015, must be dismissed as untimely taken. Initially, we note that Barlet did not move to dismiss the appeal on this ground. In any event, the record does not establish that the money judgment was ever served upon the plaintiff with "written notice of its entry, " and thus, Barlet failed to meet his burden of establishing that the time within which to take an appeal from the money judgment ever began to run (CPLR 5513 [a]; see Matter of Reynolds v Dustman, 1 N.Y.3d 559, 560; Zapata v County of Suffolk, 23 A.D.3d 553, 554; Zuccarini v Ziff-Davis Media, 306 A.D.2d 404, 404-405; Matter of Halpin v Perales, 203 A.D.2d 675, 677).

         Nonetheless, in light of, inter alia, the disparity in income between the parties and the plaintiffs conduct that delayed the proceedings, the Supreme Court properly directed the plaintiff to pay attorney's fees to Barlet, the defendant's former attorney (see Domestic Relations Law § 237[a]; Lubrano v Lubrano, 122 A.D.3d 807, 808; Levine v Levine, 24 A.D.3d 625, 626).

         We agree with the plaintiffs contention that the Supreme Court erred in awarding the defendant a divorce on the ground of cruel and inhuman treatment. "Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce" (Matter of New York, Lackawanna & W. R.R. Co., 98 NY 447, 453). "[Stipulations of settlement are judicially favored and are not lightly cast aside absent cause sufficient to invalidate a contract" (Lewis v Lewis,183 A.D.2d 875, 876). Here, there was no showing of cause sufficient to invalidate the parties' stipulation to a ...


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