DIMINO v. DIMINO

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

Vincenza DIMINO, appellant, v. Frank DIMINO, respondent.

Decided: April 24, 2007

ROBERT W. SCHMIDT, J.P., WILLIAM F. MASTRO, EDWARD D. CARNI, and THOMAS A. DICKERSON, JJ. Barry Elisofon, Brooklyn, N.Y. (Pamela A. Elisofon of counsel), for appellant.

In a matrimonial action in which the parties were divorced by judgment dated June 2, 2000, the plaintiff appeals from an order of the Supreme Court, Kings County (Krauss, J.), dated December 6, 2005, which, upon denying that branch of her motion which was to reject a referee's report (Platt, J.H.O.), dated April 27, 2005, made after a hearing, confirmed the report and denied those branches of her motion which were to hold the defendant in contempt of court for violating certain provisions of the judgment of divorce, to set aside certain portions of the parties' stipulation of settlement, and for an award of attorney's fees.

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court properly confirmed the referee's report as the findings in the report, recommending denial of those branches of the plaintiff's motion which were to hold the defendant in contempt, to set aside portions of the parties' stipulation of settlement, and for an award of attorney's fees, based on her failure to sustain her burden of proof, are amply supported by the record (see Slater v. Links at N. Hills, 262 A.D.2d 299, 691 N.Y.S.2d 101;   Frater v. Lavine, 229 A.D.2d 564, 646 N.Y.S.2d 46).

 The plaintiff did not meet her burden to hold the defendant in civil contempt (see McCain v. Dinkins, 84 N.Y.2d 216, 227, 616 N.Y.S.2d 335, 639 N.E.2d 1132;  Rienzi v. Rienzi, 23 A.D.3d 447, 449, 808 N.Y.S.2d 113).   She failed to establish that the defendant willfully violated the parties' stipulation of settlement, which was incorporated into the judgment of divorce, thereby prejudicing her rights (see Rienzi v. Rienzi, supra;  Vujovic v. Vujovic, 16 A.D.3d 490, 491, 791 N.Y.S.2d 648;  Rupp-Elmasri v. Elmasri, 305 A.D.2d 394, 395, 758 N.Y.S.2d 524).

 The plaintiff also failed to meet her burden to set aside certain portions of the parties' stipulation of settlement (see Brennan-Duffy v. Duffy, 22 A.D.3d 699, 804 N.Y.S.2d 399;  Jacobs v. Jacobs, 234 A.D.2d 425, 651 N.Y.S.2d 897).   She failed to establish that the stipulation of settlement was the result of fraud or overreaching, or that its terms were unconscionable (see Rubin v. Rubin, 33 A.D.3d 983, 985-986, 823 N.Y.S.2d 218;  Chambers v. McIntyre, 5 A.D.3d 344, 345, 772 N.Y.S.2d 530;  Jacobs v. Jacobs, supra ).

The plaintiff's request for an award of attorney's fees was properly denied (see DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168;  Matter of Lewis v. Redhead, 19 A.D.3d 495, 796 N.Y.S.2d 244).

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