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

IN RE: Patti BLONDER, Respondent, v. Evan BLONDER, Appellant.


Decided: April 17, 2019

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ. Johannesen & Johannesen, PLLC, Rocky Point, N.Y. (Richard Johannesen of counsel), for appellant. Berger, Fischoff, Shumer, Wexler & Goodman, LLP, Syosset, N.Y. (Brad A. Schlossberg of counsel), for respondent.


ORDERED that the order dated August 10, 2018, is affirmed, with costs.

The parties, Evan Blonder (hereinafter the appellant) and Patti Blonder (hereinafter the respondent), were married on February 16, 1991, and have three children.  They entered into a separation agreement on August 29, 2012, which was incorporated but not merged into their subsequent judgment of divorce.  In relevant part, the separation agreement provided that the appellant would pay the respondent maintenance for a total of seven years, noting that “maintenance payments to the [respondent] shall end upon the death or remarriage of the [respondent], or the death of the [appellant].”  The separation agreement also provided the respondent with exclusive occupancy of the marital home until the parties' youngest child turned 18 or graduated high school, the respondent's remarriage, or the respondent's cohabitation with an unrelated individual.

The appellant commenced an action to sell the marital home upon the respondent's cohabitation with another man.  In May 2016, the parties entered into an amendment to the separation agreement in which they agreed to sell the marital home.  The amendment did not modify the appellant's maintenance obligation.  In July 2017, the appellant stopped paying the respondent maintenance, alleging that the respondent was “holding [herself] out” as another man's wife.

The respondent commenced this proceeding in the Family Court to enforce the judgment of divorce as it pertained to the appellant's maintenance obligation.  After a hearing, in an order dated May 21, 2018, the Support Magistrate determined that the appellant's maintenance obligation should continue and directed him to pay the respondent maintenance arrears in the sum of $ 25,000.  The appellant then filed an order to show cause seeking to set aside the maintenance provision of the parties' judgment of divorce.  In an order dated May 25, 2018, the Support Magistrate dismissed the appellant's motion.  The appellant filed objections to both orders of the Support Magistrate, and the Family Court denied the objections.

“The Family Court is a court of limited jurisdiction and is without the power to set aside or modify the terms of a settlement agreement” (Matter of Huddleston v. Huddleston, 14 A.D.3d 511, 512, 788 N.Y.S.2d 411;  see Matter of Duggan v. Duggan, 83 A.D.3d 703, 704, 923 N.Y.S.2d 114;  Matter of McKeown v. Woessner, 249 A.D.2d 396, 397, 671 N.Y.S.2d 134).  Furthermore, “this power cannot be conferred upon [the Family Court] by agreement of the parties” (Kleila v. Kleila, 50 N.Y.2d 277, 282, 428 N.Y.S.2d 896, 406 N.E.2d 753;  see Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471).  Contrary to the appellant's contention, the Support Magistrate did not err in dismissing his motion, because the Family Court lacked the jurisdiction to modify the terms of the parties' separation agreement.

“ ‘A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation’ ” (Rosner v. Rosner, 143 A.D.3d 882, 883, 39 N.Y.S.3d 247, quoting Frances v. Frances, 140 A.D.3d 1114, 1115, 34 N.Y.S.3d 171;  see DeCamello v. DeCamello, 151 A.D.3d 804, 805, 56 N.Y.S.3d 524;  Matter of Gucker v. Gucker, 144 A.D.3d 798, 799, 41 N.Y.S.3d 81).  “ ‘A court may not write into a contract conditions the parties did not insert ․ and it may not construe the language in such a way as would distort the ․ apparent meaning’ ” (Matter of Crawley v. Crawley, 152 A.D.3d 510, 511, 58 N.Y.S.3d 124, quoting Matter of Miller v. Fitzpatrick, 147 A.D.3d 845, 847, 47 N.Y.S.3d 378;  see Cleva v. Cleva, 139 A.D.3d 785, 786, 31 N.Y.S.3d 551;  Fleming v. Fleming, 137 A.D.3d 1206, 1207, 28 N.Y.S.3d 440).  “Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence” (Clark v. Clark, 33 A.D.3d 836, 837, 827 N.Y.S.2d 159;  see Levi–Marchessault v. Marchessault, 162 A.D.3d 650, 651, 78 N.Y.S.3d 395;  DeCamello v. DeCamello, 151 A.D.3d at 805, 56 N.Y.S.3d 524;  Fleming v. Fleming, 137 A.D.3d at 1207, 28 N.Y.S.3d 440).  “The proper inquiry when determining whether an agreement is ambiguous is ‘whether the agreement on its face is reasonably susceptible of more than one interpretation’ ” (Clark v. Clark, 33 A.D.3d at 837, 827 N.Y.S.2d 159, quoting Chimart Assoc. v. Paul, 66 N.Y.2d 570, 573, 498 N.Y.S.2d 344, 489 N.E.2d 231;  see Matter of Crawley v. Crawley, 152 A.D.3d at 511–512, 58 N.Y.S.3d 124).  Here, the term “remarriage” as used in the maintenance provision of the parties' separation agreement is unambiguous and not subject to interpretation.  That cohabitation was mentioned in another article of the separation agreement as a terminating event, but not when discussing maintenance, further supports the conclusion that nothing less than the respondent's actual remarriage would terminate the appellant's maintenance obligation.

Furthermore, contrary to the appellant's contention, “the court cannot alter [an] independently enforceable contract in order to include the provisions of Domestic Relations Law § 248” (Karl v. Karl, 138 A.D.2d 354, 355, 525 N.Y.S.2d 646).

Accordingly, we agree with the Family Court's determination to deny the appellant's objections to the Support Magistrate's orders.


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