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Liebowitz v. Liebowitz


Slip Op 06475

October 52016

This is an appeal by the plaintiff to enforce portions of a divorce judgment from Westchester County, which was entered in December of 2013. In the judgment, the defendant was ordered to maintain his term life insurance until the 20-year term expired. The court ordered the judgment modified by deleting number 21 decretal paragraph, as so modified. The judgment is affirmed and remitted to the Superior Court of Westchester County for a hearing and entry of judgment of divorce. This will include replacement of the 21st decretal paragraph directing both parties to maintain their existing life insurance policies, naming their children as the beneficiaries. The plaintiff is to maintain her policy for 20 years and the defendant’s whole life insurance policy (#4819835) and its cash surrender value is the, in defendant’s separate property.

The plaintiff started this action for divorce in 2010 after 20 years of marriage. In March of 2013, the parties entered into a stipulated settlement. In the stipulation, there were several provisions that the plaintiff had waived, including her cash value of the defendant’s whole life policy in consideration of the defendant maintaining the policy.

The defendant also had a policy for $1.2 million and the plaintiff had a policy for 400K . The plaintiff was to maintain the policy for the kids (for a 20-year term).

The parties presented proposed judgments to the Supreme Court, each claiming to be their version of the facts that was the most accurate. The court signed the defendant’s proposed judgment. This directed the defendant to maintain the existing policy for a 20-year term.

The plaintiff appeals, contending that the court modified the terms of the party’s stipulation.

During the appeal, each party contends that their stipulation is clear, notwithstanding their different interpretations of how long the policy was kept in effect. Plaintiff says that that the policy must be kept for 20 years as mentioned in the stipulation and nothing in the document supports the limitation the court asserted in its judgment.

The plaintiff said the words “until the 20-year term expires” applies to only her policy, not the defendants. She says that she waived her interests in the defendant’s policy (which had a value of $30K) as consideration for the defendant agreeing to keep up both policies, a whole life and a term with a total dollar value of $1,325K.

The defendant said his obligation is limited by the stipulation and he isn’t required to maintain the policies that he currently has. He stated that the expense of extending his term policy for longer than 20 years (until the emancipation of the youngest child would be cost prohibitive, totaling more than $160K). He said that he never would have agreed to that arrangement and that he purchased additional term insurance which exceeds his obligations after the 20-year term ends.

The court said that “a stipulation of settlement that is incorporated but not merged into the written judgment retains the character of an independent contract and survives for the basis of a lawsuit” (Driscoll v Driscoll 45 AD3d 723; Salinger v Salinger 125 AD3d 747, 749). When the stipulation is clean, the intent of the parties is to be determined from the document, not outside evidence (Boster-Burton v Burton 92 AD 909, 910; Rainbow v Swisher 72 NY2d 106).

In this case, the stipulation is unclear as to how long the parties intended for the defendant’s life insurance to last. To determine this, it is up to the judge. However, the Supreme Court incorrectly exercised its powers in choosing the defendant’s proposed judgment rather that the plaintiff’s without a hearing, on a specific determination whether the language reflected the intent of the parties.

The parties’ remaining contentions are dismissed.

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