Divorce Lawyers New York - Recent Family Law Decisons (18)
RECENT FAMILY LAW DECISIONS (18)
Settlement Agreement
Collateral Estoppel
Since the facts considered by the trial court at the modification hearing were different from the facts in the prior hearings on maintenance award, the doctrine of collateral estoppel was not applicable.
Consent Decree
Continuing Jurisdiction
When parties incorporated a property settlement agreement in a decree its became merged therein, and the alimony provided in the agreement became subject to modification from time to time as appeared reasonable and proper.
Contractual
A property settlement, standing alone, is merely a contract between the parties. One who seeks to vacate only the property settlement provisions in a divorce decree is the same position as a person seeking to set aside an ordinary contract.
Divestiture of Jurisdiction
When dealing with such matters as grounds for divorce, payment of alimony, and modification of divorce decrees, which are regulated by statute, a court is exercising powers granted by the legislature and cannot by incorporating a contractual provision in its decree divest itself of the power to modify, contrary to the legislative will.
Effect
The court has the power to modify a decree or order as to child support and educational payments and there are no exceptions in regard to prior agreements or “consent decrees;” the trial court is not deprived of the power to modify a consent decree.
Effect of Amendment
The 1981 amendment to subdivision (b), adding the language, “Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court”, was not intended to change the law but was instead intended to clarify the law.
A marital settlement which predated the 1981 amendment to subsection (c) of this section did not include provision for termination of maintenance on basis on conjugal cohabitation, and therefore there could be no termination on this basis.
The 1982 amendment to subsection (b) of this section, is fully applicable to proceedings conducted prior to the effective dates of the amendments.
The amendment to subsection (b) of this section, which became effective January 1, 1982, was the applicable law on the appeal of a pending case because of the general rule that when the legislature changes the law while an appeal is pending, the reviewing court will apply the law as it exists at the time of its decision, rather than the law as it was at the time of the trial court’s judgment.
