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Supreme Court, Rockland County, New York.

Debra LYNCH, Plaintiff, v. Dean LYNCH, Defendant.

Decided: October 28, 1998

Dean Lynch, defendant pro se. Birbrower, Montalbano, Condon & Frank, P.C., New City, for plaintiff.

This is an action for divorce.   Defendant now seeks an order declaring that this action has abated by reason of plaintiff's death.   Plaintiff's attorneys contend that a divorce was previously granted by the court and now seek a judgment of divorce nunc pro tunc.

On January 11, 1996 the parties entered into a stipulation of settlement on the record before the court.   A condition of the stipulation was that the parties' child, Madeline, eight (8) years old, would be the beneficiary of a $1,000,000 trust to be created in exchange for the child's renunciation of any remainder interests she had in any existing trusts and real property.   A guardian ad litem who was appointed would conduct an investigation to ascertain the value of those remainder interests and make recommendations to the court as to whether it was in the child's best interests to create the trust and allow the renunciation.   If the guardian ad litem recommended approval and it was approved by the court, then he would make an application to be appointed guardian of the child's property to effectuate the renunciation and manage her property.   The court would retain continuing jurisdiction of this matter awaiting the report of the guardian ad litem so that this proceeding could be concluded.

Defendant then withdrew his answer, an inquest was held and plaintiff was granted a divorce based upon the ground of constructive abandonment.   It was further agreed that the judgment would not be entered until confirmation of the stipulation.   Plaintiff subsequently died on September 5, 1996.

The guardian ad litem completed his investigation and submitted his report dated February 24, 1998.   He recommended against creation of the $1,000,000 trust in exchange for the renunciation of the child's interest in the trusts and real property since the actual value of the child's interests was significantly greater than the amount of the proposed trust.

Defendant now contends that the creation of the trust in exchange for the child's renunciation was a condition precedent to the entry of a judgment of divorce.   Since the condition has not been met this action abated upon plaintiff's death.   Plaintiff's attorneys contend that the court previously granted the judgment of divorce unconditionally and therefore, the entry of that judgment nunc pro tunc is purely a ministerial act.

 A stipulation made in open court and read into the record is enforceable as a contract binding on the parties thereto and is governed by general contract principles for its interpretation and effect.   State of New York v. Warren Bros. Co., 190 A.D.2d 728, 593 N.Y.S.2d 308 and Baumis v. General Motors Corp., 117 A.D.2d 884, 499 N.Y.S.2d 227.   The court has the responsibility of effectuating the true intent of the parties similar to a matter where the parties seek enforcement of a contract. Furgang v. Epstein, 106 A.D.2d 609, 483 N.Y.S.2d 103.   Therefore, the court will construe a stipulation in accordance with the intent of the parties and the purpose of the stipulation by examining the record as a whole.  Kraker v. Roll, 100 A.D.2d 424, 474 N.Y.S.2d 527.

 A condition may be precedent to an obligation to perform a contract.  James H. Merritt Plumbing Corp. v. New York, 121 A.D.2d 990, 505 N.Y.S.2d 1.   To make a provision in an agreement a condition precedent, it must appear from the agreement itself that the parties intended the provision to so operate.  David Fanarof, Inc. v. Dember Constr. Co., 195 A.D.2d 346, 600 N.Y.S.2d 226.

 Where a decedent dies during the pendency of a divorce action, the action abates because the marital relationship between the parties no longer exists.  Matter of the Estate of Forgione, 237 A.D.2d 438, 655 N.Y.S.2d 552.   An exception to this rule exists where the court has made a final adjudication of divorce but has not performed the mere ministerial act of entering the final judgment.  Cornell v. Cornell, 7 N.Y.2d 164, 196 N.Y.S.2d 98, 164 N.E.2d 395 and Brown v. Brown, 208 A.D.2d 485, 617 N.Y.S.2d 48.

 Upon review of the stipulation, the court finds that it was the intent of the parties that the proposed creation of the trust and renunciations was conditioned upon the guardian ad litem's recommendation and court approval and that the judgment of divorce could not be effective until that condition had been met.   Since the guardian ad litem's recommendation and court approval were not obtained, the entry of a judgment of divorce cannot be considered a mere ministerial act.

Accordingly, the parties are not entitled to a judgment of divorce and there is an abatement of this action.   Therefore, defendant's motion is granted and plaintiff's cross-motion is denied.


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