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FLORENCE M. BARNA, APPELLANT, v. STEVEN M. BARNA, RESPONDENT.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The stipulation of settlement entered into by the parties in open court constituted a contract which should be enforced according to its terms. Since there was no proof of fraud, duress, overreaching, or unconscionability, the Supreme Court properly determined that the plaintiff was not entitled to an award of interest (see, Wilson v. Neppell, 253 A.D.2d 493; Torsiello v. Torsiello, 188 A.D.2d 523; Standley v. Standley, 83 A.D.2d 863). The Supreme Court also properly determined that the plaintiff was not entitled to reimbursement for losses, or for interest attributable to the delay in distributing certain assets.

The Supreme Court properly denied the plaintiff's claim to be reimbursed for certain of her expenses, which she claims are due pursuant to the pendente lite order of maintenance. Arrears due under a pendente lite order may be recovered after a final judgment of divorce, even if the judgment is entered upon a stipulation (see, Greenberg v. Greenberg, 218 A.D.2d 558, 559). Public policy considerations require that a party who fails to comply with a pendente lite order should not be relieved of his or her obligations (see, Greenberg v. Greenberg, supra). However, the parties may waive arrears due under such an order in their stipulation (see, Greenberg v. Greenberg, supra). Here, the defendant did not violate the pendente lite order. Rather, the plaintiff is raising additional claims for reimbursement which would first require a factual determination that they are, in fact, covered by the pendente lite order. However, the stipulation specifically provides that "[t]here is a waiver of maintenance. There will be no support or alimony under this agreement". It is apparent that the parties did not contemplate the adjudication of new claims for reimbursement of expenses once they entered into the stipulation. Rather, the parties intended that the stipulation constitute the final resolution of the controversy between them. Accordingly, the plaintiff`s claim under the pendente lite order was properly denied.

The plaintiff's remaining contentions are without merit.

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BARNA v. BARNA
(Jan 11, 2001)