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Week 4-10-2019

Written by Samantha Sparacino

Enforcing provision of the stipulation to the extent of directing the father
to refer to the parties’ child by a certain name

Appellate Division affirmed the lower Court order, which, after a hearing,
granted the mother’s petition to the extent of enforcing a provision of the
stipulation of settlement that directs the parties to refer to their child by the
English legal name when addressing the child, introducing the child to others,
or when the father is in conversation with others with the child present.
At the hearing, the Family Court stated that through an in camera interview,
the child claimed that he preferred to be called by his English legal name.
Furthermore, the mother testified that the father continuously referred to their
child by a name other than his English legal name and by doing so, confused
and caused distress to the child.

Since the subject provision was ambiguous as to what actions were required to
“promote” the child’s “understanding” of his legal name, extrinsic evidence
was properly admitted to discern its meaning (see Greenfield v Philles
Records, 98 NY2d 562, 569). The Family Court was entitled to rely upon the
language of the entire stipulation and the circumstances surrounding its
execution in construing the provision (see Noren v Babus, 144 AD3d 762,

Matter of Preston v. Hormadaly, 2018-09176

Denying defendant’s motion to vacate his default, burden to demonstrate
a reasonable excuse for his/her default and the existence of a potentially
meritorious defense

In an action for a divorce and ancillary relief, a Supreme Court order
precluded the defendant from offering at trial any financial evidence and
directed that all issues in regards to the marital residence and properties would
be resolved in favor of the plaintiff unless the defendant paid half of the
appraisal fee as previously ordered, as the defendant willfully failed to comply
with disclosure orders. Furthermore, the Supreme Court found the defendant
in default and commenced an inquest after he failed to appear for the pretrial
conference as well.

The defendant retained new counsel and moved to vacate his default, claiming
that he had been ill and was in the hospital on the pretrial conference date. The
lower Court denied the defendant’s motion finding, inter alia, that while he did
demonstrate a reasonable excuse for his default, he had failed to establish the
existence of a potentially meritorious defense. The Appellate Division

Merlino v. Merlino, 2017-12317

Moving to vacate the judgment of divorce, evidentiary hearing required
with evidence of extrinsic fraud

Here, the defendant appeals from an order denying her motion pursuant to
CPLR 5015(a)(3) to vacate a judgment of divorce. The Appellate Division
reversed the order and is remitted back to the Supreme Court for an
evidentiary hearing on the issue of whether the defendant was fraudulently
induced by the plaintiff into not defending the matrimonial action and to
consent to terms that were unconscionable or the product of fraud and
overreaching, and for a new determination of the motion thereafter.

When the matrimonial action commenced, the defendant appeared pro se and
submitted an affidavit waiving her right to answer the complaint and her rights
to equitable distribution. A judgment of divorce was entered in 1994 and the
defendant, in 2016, moved pursuant to CPLR 5015(a)(3) to vacate the
judgment of divorce, claiming, inter alia, that she was unable to consent to the
divorce by reason of mental illness and alleging that the plaintiff had obtained
the judgment of divorce through extrinsic fraud and persuasion.

The Court found that the defendant failed to meet her burden of
demonstrating, by competent admissible evidence, that she was incapacitated
when she signed the affidavit in 1993, waiving her rights. However, the
Appellate Division held that the lower Court impermissibly denied the Wife’s
application regarding the Husband’s purported fraud. Specifically, the
Appellate Division found that the Wife was entitled to a hearing regarding the
Husband’s purported “trick or deceit” in the prior action. The matter was
remanded back to the trial Court for a hearing on this issue.

Petrosino v. Petrosino, 2017-00562

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Petroske Riezenman & Meyers, P.C. staff