Lewis v. Lewis

Carni, J. (dissenting in part).

I respectfully dissent in part. I cannot agree with the majority that the requirements of Domestic Relations Law § 236 (B) (3) pertain only to stipulations that affect the equitable distribution of marital property. In my view, the oral stipulation with respect to custody of the parties’ children was invalid because it failed to comply with the requirements of section 236 (B) (3). That section expressly includes agreements that provide “for the custody, care, education and maintenance of any children] of the parties.” (Id.) Further, the Court of Appeals stated in Matisoff v Dobi (90 NY2d 127, 132 [1997]) that section 236 (B) (3) “authorizes spouses or prospective spouses to contract out of the elaborate statutory system and provide for matters such as inheritance, distribution or division of property, spousal support, and child custody and care in the event that the marriage ends” (emphasis added).

I therefore would further modify the judgment by vacating the 2nd through 7th decretal paragraphs, and I would further direct Supreme Court upon remittal to make a new determination with respect to custody following a further hearing, if necessary. Present—Martoche, J.P., Smith, Fahey, Carni and Pine, JJ.