Del Giudice v. Del Giudice

In an action in which the defendant husband was granted a divorce by a judgment of the Supreme Court, Queens County, dated May 14, 1976, he appeals from an order of the same court, dated July 16, 1976, which denied his motion to vacate stated portions of the said judgment which, inter alia, directed him to pay plaintiff a lump sum of $15,000. Order affirmed, without costs or disbursements. The plaintiff initiated an action for divorce based upon cruel and inhuman treatment. The defendant interposed a counterclaim for divorce based upon the same ground. At the commencement of the trial, the plaintiff withdrew her complaint and the defendant proceeded to trial. A stipulation between the parties was received in evidence. It provided, inter alia, for the lump sum payment of $15,000 by the defendant to the plaintiff, $11,500 of which was for the plaintiff and $3,500 of which was for attorney’s fees. The parties indicated that they understood and consented to the stipulation. Although the judgment contained the pertinent portions of the stipulation, the stipulation was not merged into the judgment. Thereafter the defendant’s motion to vacate the portions of the judgment relating to the stipulation, upon the grounds of fraud, misrepresentation and other misconduct, was denied. We agree. The record does not indicate that the defendant was induced to enter into the stipulation by the fraud, misconduct or coercion of the plaintiff. Martuscello, Acting P. J., Cohalan, Rabin and Mollen, JJ., concur.