LINDER v. LINDER

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Supreme Court, Appellate Division, Second Department, New York.

Lisa LINDER, Respondent, v. Ronald M. LINDER, Appellant.

Decided: September 23, 2002

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES and BARRY A. COZIER, JJ. S. Abrahams & Associates, Esq., P.C., White Plains, NY, for appellant. Ellenbogen & Goldstein, P.C., New York, N.Y. (Joan L. Ellenbogen of counsel), for respondent.

In a matrimonial action in which the parties were divorced by judgment dated January 26, 1998, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Shapiro, J.), entered February 7, 2001, as denied that branch of his motion which was to vacate the parties' stipulation of settlement dated December 11, 1997, and so much of the judgment of divorce as related to maintenance, child support, and equitable distribution.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the defendant's motion which was to vacate a stipulation of settlement dated December 11, 1997, and so much of the judgment of divorce as related to maintenance, child support, and equitable distribution.

 A separation agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability (see Wilson v. Neppell, 253 A.D.2d 493, 677 N.Y.S.2d 144).   Additionally, a final judgment may not be vacated on the grounds of fraud or misconduct where the moving party had knowledge of the fraud or misconduct before the entry of the final judgment (see McGovern v. Getz, 193 A.D.2d 655, 598 N.Y.S.2d 9). Here, the defendant did not establish fraud, duress, overreaching, or unconscionability.   Moreover, the defendant was aware of the assets that he now claims were hidden prior to the trial and the date that the parties entered into the stipulation of settlement.

The defendant's remaining contentions are without merit.

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