“(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; “(2) the duration of the marriage and the age and health of both parties; “(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; “(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; “(5) any award of maintenance under subdivision six of this part; “(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such <mask> by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; “(7) the liquid or non-liquid character of all marital property; *677“(8) the probable future financial circumstances of each party; “(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; “(10) any other factor which the court shall expressly find to be just and proper.” The statute makes no distinction between a contested matter and one in which there has been a default by one of the parties. The court appears to be required, even where there is an inquest taken on the nonappearance of a party, to consider the above factors when it equitably disposes of marital property in the final judgment. Indeed, the court must set forth the factors it considered and the reasons for its decision, and such may not be waived by either party or counsel. (See Domestic Relations Law, § 236, part B, subd 5, par g.)


The trial court properly determined that the plaintiff wife should not have her equitable distribution award reduced to reflect the loss in value of property the defendant purchased in Lindenhurst, New York. One month after leaving the marital home, the defendant used $60,000 of marital assets to purchase the Lindenhurst property, without the knowledge or consent of the plaintiff, and the record supports a conclusion that the defendant did not intend to share this property with the plaintiff. Each item of <mask> need not be divided equally. The trial court possesses flexibility to mold a decree which is fair and just (see, Arvantides v Arvantides, 64 NY2d 1033, 1034; Rodgers v Rodgers, 98 AD2d 386, 391). Under the above circumstances, it was fair and equitable that the plaintiff not share in the loss of value on this property.


Here, Marilyn Seyfarth lives with her youngest child, age 16, in a one-family Massapequa Park, home which she now owns solely, having been deeded her estranged husband’s prior one-half interest.in August, 1971. In March, 1968, the husband alone had a judgment filed against him concerning his business transactions after he was separated from his wife. The property, having been purchased in both names in 1951, the judgment, of course, takes precedence over the husband’s later transfer of his interest to his wife. The judgment creditor has initiated proceedings to execute upon that judgment by Sheriff’s sale of Mr. Seyfarth’s prior one-half interest in the <mask>, and now Mrs. Seyfarth, who supports herself from a combination of her own hospital employment, rent from a boarder and a local newspaper that uses her garage as a delivery drop, and sporadic support payments, seeks in this proceeding to stay execution pursuant to CPLB 5240.


“[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of <mask>, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.” (Domestic Relations Law § 170 [7].) The foregoing provides all due process protections and is not found in any other subdivision of Domestic Relations Law § 170, expressing an awareness by the drafters of the legislation that there is no defense to the no-fault ground while protecting the economic rights of the opposing spouse and children.


Other factors to consider when making an alimony determination are the amount and nature of the parties' incomes, both current and anticipated; the earning ability and capacity of each party; and the extent and nature of each parties' resources and assets. Delacey, supra. In this case, by not modifying the original alimony award, the trial court was not granting Patricia a windfall of the increased value of <mask> previously distributed between the parties; it was instead upholding the original alimony award of $ 1059 per month based on Patricia's continuing need for the alimony and Roger's ability to pay from the resources available to him. Because Roger has not shown an abuse of discretion, we affirm the trial court's order finding that Patricia will continue to receive the monthly alimony.


We agree with the court that plaintiff offered no. evidence "to lead to a legal conclusion that the undergraduate degree was the sine qua non for the significant advancement of [defendant]” and that defendant’s attendance at the Harvard Advanced School for Banking did not constitute <mask> because it yielded no advanced degree or license. Thus, the court properly granted defendant’s motion for summary judgment dismissing that portion of the complaint seeking equitable distribution of defendant’s alleged "enhanced earn*1027ing capacity”. (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Equitable Distribution.) Present—Den-man, P. J., Lawton, Fallon, Balio and Boehm, JJ.


In order to initially award maintenance, a trial court must factually find that the spouse seeking such an award: (1) lacks sufficient property, including <mask> granted to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment. Creech v. Creech , 992 S.W.2d 226, 230 (Mo. App. 1999) ; see also section 452.335.1.2 Here, these determinations were made by the dissolution judgment, and the trial court found in the modification judgment that "[Ex-wife] continues to lack sufficient property, including marital property apportioned to her in the original dissolution of marriage proceeding, to provide for her reasonable needs and is unable *26to support herself through appropriate employment and is in continued need of an award of maintenance." The trial court further expressly found that after Ex-wife obtained her bachelor's degree, she "diligently sought employment[,]" that Ex-wife's income from that employment was "within the range of her capabilities of employment and were appropriate[,]" and that "[Ex-wife] is not under employed for the area in which she resides." These expressed factual findings support the reasonable inference that, although she had not become self-supporting at the time of the modification judgment, Ex-wife had made a good faith effort to become self-supporting in a reasonable amount of time.


With one option excluded by law, the court notes that while <mask> is generally valued at the time an action is commenced, Supreme Court is vested with broad discretion to set a valuation date anytime between the date of commencement and the date of trial. (Mesholam v Mesholam, 11 NY3d 24 [2008]; Fehring v Fehring, 58 AD3d 1061, 1063 [3d Dept 2009].) In exercising that discretion, this court is struck by the Court of Appeals’ repeated guidance that the date of commencement for valuation purposes provides clarity for trial judges and litigants. In Anglin v Anglin (80 NY2d 553 [1992]), the Court noted that the economic partnership should be considered dissolved when a matrimonial action is commenced because this firm date *681provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic marital partnerships end. The Court cited Anglin v Anglin, and repeated its advice later in Mesholam v Mesholam (11 NY3d 24 [2008]), adding that the commencement date of a matrimonial action demarcates “the termination point for the further accrual of marital property.” (11 NY3d at 28.) A close reading of cases in the wake of Anglin and Mesholam reflects a continued judicial preference for a “date of commencement” valuation. (See e.g. Rich-Wolfe v Wolfe, 83 AD3d 1359 [3d Dept 2011] [Supreme Court properly valued several construction and demolition businesses, formed over the course of the parties’ long marriage, as of the date of the commencement of the action rather than the date of trial]; Fox v Fox, 309 AD2d 1056, 1058 [3d Dept 2003] [date of commencement for valuation for law practice].)


The genesis of this motion lies in the amendment to the Domestic Relations Law and related statutes (L 1980, ch 281). Plaintiff’s attorney candidly and unequivocally states that the purpose of the discontinuance is to enable plaintiff to commence a new action whereunder she could seek an equitable division of <mask>. Whereas the preamendment statute was drafted in accordance with rules of title, the amended statute adopted the concept of marriage as a partnership and authorizes judicial distribution of marital property in accordance therewith rather than necessarily in accordance with title. Informal assessment of the consensus of opinion among practitioners in the field of matrimonial law indicates agreement that the amendment will be beneficial to wives in the majority of cases.


12. We observe that arrangements such as this should be reserved for only the most unusual cases. As we have already emphasized, in distributing <mask>, courts should act “with a view toward allowing each party to go forward with his or her separate life,” Marroquin, 2019 UT App 38, ¶ 27 (quotation simplified), and avoiding the necessity of parties continuing “in a close economic relationship which has every potential for further contention, friction, and litigation,” Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984) (quotation simplified). The estate division and equalization payments in this case have the unfortunate result of keeping the parties tied together long after their divorce and depriving Candi of immediate access to her (continued…)


James T. Ryan and Anne Marie (Ryan) Boranian were married on February 14, 1993 and did not have any children. They physically separated in August 1995 and were divorced on April 10, 1997. The findings of fact in the matrimonial action provide “that there are no disputes as to separate or <mask>.” Depositions were taken of the respondent, Anne Marie Boranian, and her attorney for the divorce, Adam C. Kandall, Esq. Respondent acknowledged that she never made a claim for decedent’s retirement benefits at the time of the divorce and the divorce was intended to be an “even exchange.” The parties split their savings equally, she retained the rental apartment and he took the car subject to liens. Adam C. Kandall testified that his file in this matter was destroyed in a fire, but that his custom was to produce a stipulation of settlement. He had no recollection of a division of pension benefits being discussed. No written stipulation of settlement, separation agreement or qualified domestic relations order was ever produced.


In this case, as was the case in Moore, the parties entered into a property settlement agreement which was incorporated into the dissolution judgment by reference. In the judgment the income that Stephen was currently receiving from the military pension was listed as income both for purposes of calculating his child support and maintenance obligations. The income that Karla was going to be receiving as soon as the paperwork from the dissolution was final and processed by the pension plan was used for determining her income for purposes of child support and for determining her ability to meet her reasonable needs regarding maintenance. The property settlement agreement and subsequently the final judgment did not place a total value on the military pension plan, but merely divided the monthly benefit payments equally between the parties. Neither party may collaterally attack the final dissolution judgment by arguing the income from the military pension was improperly treated for the calculation of maintenance in that judgment. Id. at 391-392. The trial court should consider the parties intentions when they reached a settlement on the division of property in the original dissolution. See Conrad-Neustadter v. Neustadter , 340 S.W.3d 660, 666 (Mo. App. W.D. 2011). Both parties treated the pension payments to each of the parties as income in the maintenance determination in the original dissolution and in presenting their evidence on the motion to modify that maintenance award. "Although the Missouri Supreme Court held that trial courts were not required to include or exclude income attributable to retirement and IRA accounts awarded as <mask> in the calculation of maintenance *721awards, it did require trial courts to 'consider' such income when calculating maintenance. [Hill v. Hill , 53 S.W.3d 114] at 116 [ (Mo. banc 2001) ]." Schubert v. Schubert, 366 S.W.3d 55, 65 (Mo. App. E.D. 2012). See also Tarneja v. Tarneja, 164 S.W.3d 555, 566 (Mo. App. S.D. 2005). "Because of the untold number of 'pension plans' which appear to have their own singular and unique requirements for meeting 'vesting' and 'maturing' provisions, it is imperative that trial courts be authorized to apply a flexible approach to accommodate the particular facts of each case." Landewee v. Landewee, 515 S.W.3d 691, 695 (Mo. banc 2017) (internal citations and quotation marks omitted).


The plain language of the stipulation, however, was that “the pension plans will be split according to the ruling in Majauskas.” “[P]ension benefits earned during a marriage and prior to the commencement of a divorce action constitute marital property” and thus are subject to equitable distribution. (Brooks v Brooks, 55 AD3d 520, 522 [2d Dept 2008].) The entry of a QDRO is not a form of relief itself but, rather, is a means to carry out the equitable distribution of <mask>.


Husband acquired the Residence before the marriage and titled the Residence in his name only. The parties paid the mortgage from Husband's Bank of America checking account. The balance on the Residence's mortgage was $87,700 at the time of the marriage and the balance at trial amounted to $26,833.50. Husband concedes that he deposited both his salary and his military pension that he received during the marriage into his Bank of America checking account. Husband contends that he used only his military pension, which was earned before the marriage, to pay the mortgage each month. However, the record shows that Husband deposited his military pension into the same Bank of America checking account in which he deposited his salary. Accordingly, the issue is whether the trial court erred in finding that the commingling of Husband's military pension with his current salary rendered the funds used to pay the mortgage during the marriage to be <mask>.


"The trial court has broad discretion in identifying, valuing, and dividing <mask>." Alabach v. Alabach, 478 S.W.3d 511, 513 (Mo. App. E.D. 2015). This Court will interfere with the trial court's distribution of marital property only if the division is so heavily weighted in favor of one party as to amount to an abuse of discretion. Rallo v. Rallo, 477 S.W.3d 29, 38 (Mo. App. E.D. 2015).


A waiver is the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable (Nassau Trust Co. v Montrose Concrete Prods. Corp., supra, at 184, citing City of New York v State of New York, 40 NY2d 659, and Davison v Klaess, 280 NY 252). An interest of a debtor in community property is property of the bankruptcy estate only when it is (a) under the sole, equal, or joint management or control of the debtor; or (b) liable for an allowable claim against the debtor and the debtor’s spouse (11 USC § 541 [a] [2]). Neither defendant’s pension nor deferred compensation plans fall within this definition of the property of the bankruptcy estate. “There are no vested present or contingent property rights or interests, legal or equitable, in such <mask> solely because it is marital property under the New York Domestic Relations Law” (In re Frederes, supra, at 291-292, citing In re Hilsen, 100 Bankr 708, 711 [SD NY 1989]). When the bankruptcy estate was fixed upon the filing of the petition, neither plaintiff nor his subsequent chapter 7 trustee had any basis for claiming a legal or equitable interest in defendant’s pension and deferred compensation plans (see, e.g., In re Hohenberg, 174 Bankr 487). Defendant’s interest, if any, did not vest within 180 days thereafter and, in fact, has not vested to date. Such interest was not, therefore, available to the trustee in bankruptcy at any time prior to defendant’s bankruptcy adjudication (In re Frederes, supra). Should plaintiff acquire any interest postbankruptcy, and well outside the 180 days provided for under 11 USC § 541 (a) (5), that interest does not automatically become part of the bankruptcy estate (In re Hohenberg, supra). Therefore, the failure to list such an interest, when it is questionable whether or not such listing was even required, cannot be considered an intentional waiver of a known right.


(1) Alimony (maintenance); (2) Child support; (3) Counsel fees; (4) Custody of the infant issue; *680(5) Exclusive possession of the marital abode; (6) Equitable distribution of the <mask>; (7) Permission to resume use of the maiden name; (8) Such other and further relief as to the court may seem just and proper. Plaintiff and defendant were married on or about August 30, 1969 in Queens, New York. There are two children of the marriage whose names are: Jason, age 8 and Brian, age 5. The parties were both over the age of 21 years when the action was commenced, and at the time of the commencement of this action and for a continuous period of at least one year immediately preceding such commencement, the plaintiff and defendant resided in this State, and the cause occurred in this State. Inquest was held on December 22, 1980.


The facts in Kelly are strikingly similar to those here. In both cases a note was exchanged for shares of stock. In Kelly , our supreme court did not accept the argument that paying for the property with nonmarital funds changed the character of the property and we do not accept it now. Under these facts, the circuit court clearly erred when it found that the portion of the stock purchased during the marriage was non<mask>.


A <mask> may continue in existence after the parties have been divorced. The agreement may be incorporated by reference in a foreign matrimonial judgment when the court ratifies and incorporates it as part of the matrimonial judgment in lieu of alimony and orders performance of these obligations. (Fabrikant v Fabrikant, 19 NY2d 154.) If merger and nonsurvival are intended, the decree should make an appropriate provision rather than remain silent. (Haboush v Haboush, 56 Misc 2d 666.)


It is this court’s conclusion that this cause of action now before it can be interposed, because of the repeal of section 1168, as a counterclaim in said action for divorce, that a cause of action to set aside or nullify the <mask>, if such is desired, can be heard at the same time, and that all matters in dispute between the parties herein can be heard also at the same time, subject always to the discretion of the Supreme Court under section 262.


Claimant contends that although she received up to the time of decedent’s death, all of the payments due her under the <mask>, that many of the payments were made by checks drawn on corporate checking accounts of corporations controlled by decedent and by checks drawn on a personal “ Special ” checking account of the decedent and that this constitutes evidence showing payment of the sums due under the separation agreement that the decedent paid or assumed to pay by reason of his alleged oral agreement with her of August 11,1957. The evidence herein indicates however that claimant’s husband was on the payroll of such corporations and that net salary payments due him were broken so that there was issued a check to her order of $65 and a check to him for the balance, and the corporate records so indicate. With respect to the *910checks drawn on decedent’s personal “ Special Account,” there is evidence that directly prior to the issuance of each of them by decedent that the claimant’s husband had indorsed his entire current salary check to his father. This indicates that the son himself was making the payments he was obliged to make and that they were not being made by the decedent.


Joint custody has been tried by the Dodd family, and in the court’s view, it has failed. For 14 months, the parents have lived apart without either a <mask> or a court order of custody. During that time they have shared in all decisions, and for most of that time they have divided physical custody equally. In all areas, in matters both major and minor, there has been conflict. There have been disagreements over medical care and psychotherapy, over the children’s clothing, over discipline, over money, over the children’s attendance at family functions. Overt, bitter hostility, criticism of each other, as well as angry words and obscenities have been observed repeatedly by the children.


Second, with regard to the best interests of the child, a husband and wife may include support and custody terms in a <mask>. Such terms, like any other contract clause, are binding on the parties. However, a child is not bound by the terms of an agreement between parents as to support and custody, and courts can modify these terms in the best interest of the child. (See, Family Ct Act § 461 [a]; Matter *25of Boden v Boden, 42 NY2d 210 [1977]; Sassian v Sassian, 126 AD2d 984 [4th Dept 1987].) Nevertheless, the provision at issue here does not concern the child’s present support or custody. Placing money into an account for a five-year-old child’s college education obviously does not concern the current welfare of that child. When the terms of an agreement are clear and unambiguous, the intent of the parties must be found therein. (Nichols v Nichols, 306 NY 490, 496 [1954], rearg denied 307 NY 677.) There is no precedent to support the defendant’s contention that her breach should be forgiven because the child needs to attend private school now. The proper venue for modifying the Husband’s current support obligation, including his contribution to the child’s current education, is the Family Court, which issued the order of support that is currently in effect.


It was also established that the parties were divorced on May 19, 1971 and a <mask> was incorporated but not merged therein. By the terms of the fifth paragraph of that agreement, petitioner agreed to pay $60 per week to respondent as alimony until either party dies or the wife remarried. Respondent argues that the existence of this paragraph of the separation agreement prevents the Family Court from terminating its support order pursuant to section 248 of the Domestic Relations Law — that to do so would be to rewrite the separation agreement.


In support of this contention he points to an order of Mr. Justice Schirick, dated April 26, 1957, made in the Supreme Court, Albany County, in which a claim was compromised under somewhat similar circumstances. The committee, however, urges that under the doctrine that this court may make the election *1013which the incompetent herself would have made if sane, the modification agreement may he approved. The attorney for the committee argues that any other course would compel the institution of periodic actions against the husband under the <mask>, resulting in as many applications to compromise.


The question presented hinges on an interpretation of the word ‘ ‘ activities ’ ’ as used in the commentary, and of the language of subidivision (a) of section 237. In opposition to petitioner’s application, it is argued that the activities referred to in the discussion by Professor Siegel relate to activities in the matrimonial action, and not to such extracurricular activities in which the attorney may become involved in the negotiation of a <mask>. Our reading of subdivision (a) of section 237 and the commentary leads us to a stricter construction thereof than here urged by petitioner, and to the conclusion that the award of counsel fees therein provided is for services *565rendered or to be rendered in the prosecution or defense of the actions therein specified.


Defendant asserts that the execution of a <mask> in New York does not constitute a transaction of business in New York sufficient under the long-arm statute (CPLR 302) to subject him to the personal jurisdiction of the court. This contention runs contra to the holding in Kochenthal v. Kochenthal (28 A D 2d 117), in which the court determined that the provisions of subdivision (a) of CPLR 302 apply with equal effect to a separation agreement as it does to a commercial transaction and thus service outside the State of New York on a nondomiciliary party to a separation agreement executed in New York confers jurisdiction of his person in the New York courts.


While the facts presented here are somewhat unique, there are several cases that provide significant guidance. The Third Department case, Matter of Hartle v Cobane (228 AD2d 756), is instructive. In Hartle, the parents had a <mask> that obligated them to contribute to the college expenses of the children provided each approved of the college, course of study, and living arrangements. The father contended that the mother’s petition seeking his contribution toward college expenses should have been dismissed because his approval was not sought for one child’s decision to attend the University of Hartford. The Court held that, given the agreement’s silence on the method of expressing approval, the father’s failure to unequivocally disapprove of his daughter’s college choice, along with the fact that he drove her to the school in the fall, signified his acquiescence and implicit approval of the daughter’s decision. (Supra, at 757.)


It appears that there are other issues raised by the objections filed to the account herein which require determination. Included within them is the claim of the executors of the estate of the first wife to a balance due and owing which became payable to her under the <mask> prior to the death of the testator. As to this amount, when established, her estate is a true creditor of the estate. If the parties can agree upon the exact sum to which she is entitled, they may file a stipulation fixing the amount in order to avoid the necessity of taking testimony thereon. If they cannot agree between themselves as to the amount due, the surrogate will determine that issue upon the hearing of the remaining issues raised by the objections. A hearing upon such issues has been set for the 18th day of July, 1940, at ten-thirty a. m.


*381It is settled law that a <mask> between husband and wife may be terminated upon resumption of the marriage relation (Zimtbaum v. Zimtbaum, 246 App. Div. 778, affd. 272 N. Y. 416; Matter of Landon, 149 Misc. 832). It is also true that the law does not favor separation of husband and wife and encourages reconciliation (Schoonmaker v. Crounse, 18 N. Y. S. 2d 853). However, cohabitation between the parties of itself is insufficient to vitiate the separation agreement. A separation agreement is not terminated because the parties have engaged in sexual acts, unless the circumstances support the inference that a normal family life has been resumed. The proof must show that the cohabitation and reconciliation concurred with the intent to abandon the agreement (Dubin v. Dubin, 174 Misc. 952; Blumenthal v. Blumenthal, 194 Misc. 322; Hughes v. Cuming, 36 App. Div. 302, revd. on other grounds 165 N. Y. 81). In the last-cited case, the court said (p. 308): ‘ ‘ The ‘ cohabitation ’ spoken of in the decisions as destructive of the separation agreement means something more than mere sexual intercourse * * * ‘ to effect this end, the reconciliation must be permanent, and be followed by cohabitation. It must be a reconciliation which restores the former relations of the parties.’ * * * Nor could either of them have intended to affect the separation agreement by such intercourse as they had, for the husband continued to make payments under the contract for a long time thereafter.” It is noteworthy that the payments under the separation agreement have continued up to the time of the making of this motion and same were accepted by the plaintiff.


The issues upon the complaint and the answer insofar as defendant urges violation by the plaintiff otherwise of the provisions of the <mask> are not ready for disposition. This is so hy reason of plaintiff’s failure to meet the issues except by the assertion that the defendant appears presently to he precluded for failure to serve a bill of particulars.


This <mask> was introduced into evidence. After the usual recitals, it provides in stereotyped form that the parties shall live separately and that neither shall molest the other. It stipulated, however, that “ nothing herein contained shall be construed to prevent the first party [the husband] from bringing any action he may be advised to bring with reference to any claim he may allege to have to any property owned by the second party [the wife] and this agreement is without prejudice to any such action.”


Even if the agreement could be construed as a guarantee of payment of the $12,000 a year, the court would be required to look to the primary obligation of the son under the <mask>. The separation agreement provides that it shall be construed and governed by New York law. A man’s obligation to pay alimony under an agreement or a decree of divorce does not extend beyond the husband’s death unless the parties specifically agreed that an allowance should be made to the wife beyond the husband’s lifetime. (Wilson v. Hinman, 182 N. Y. 408.) In the cited case the court said (p. 414): “ The security required might not be in the shape of a lien on any specific property, but merely the personal obligation of sureties. In that case it would *928hardly be contended that the obligation of the sureties would extend beyond that of their principal.”


■The rationale of the authorities cited by defendant is that a person may not plead or prove his cause on the proscribed provision, nor seek the aid of the court in furthering or establishing and benefiting from his illegal purpose. For the purposes of this motion, the court will consider the <mask> as one that was solicited to attain wife’s- goal of settling her .separation action, obtaining support for her children, an equitable division of marital property and a right to live separate and apart from husband without fear of molestation or interference. Wife and children would not hesitate to enforce the beneficial provisions of the agreement enuring to them. It is indeed an anomalous situation where an over-all agreement, not malum in se, may be declared valid by the court in all respects other than the provision of nonsupport and then declare the agreement not to be a separation agreement for use as a “ formal document ’ ’ upon which a divorce action may be predicated. In effect the court would be assessing a double penalty against husband for being a party to an agreement exacted by wife. To dismiss plaintiff’s complaint is to broadly declare as a matter of law that wife, and wife alone, may benefit from a separation agreement containing one void provision. The husband may only be the victim, barred from enforcing the unrelated rights that can accord with statute to terminate a dead marriage.


It is conceded that prior to the commencement of this separation action and on the 1st day of November, 1955, a written <mask> was entered into, a copy of which is annexed to the answer herein. It further appears that the defendant has been making the payments under said separation agreement and there is no claim of default. However, the plaintiff contends that on various occasions after the execution of the separation agreement the parties lived together as husband and wife and argues therefrom that the separation agreement came to an end. On the other hand, the defendant insists that at no time did he live with plaintiff as husband and wife following the separation agreement and that the separation agreement is still in force and effect.


The appeal is sustained. I hold that the <mask> was a valid obligation enforcible against the husband in his lifetime and against bis estate after his death. (Barnes v. Klug, 129 App. Div. 192; Matter of Golding, 127 Misc. 821; Wilson v. Hinman, *389182 N. Y. 408; Matter of Hoffman, 108 Misc. 612.) The obligation to pay the annual amount during the lifetime of the former wife was stated in the agreement to be binding upon the husband and his legal representatives. As an enforcible obligation against his estate^ it was as much a proper deduction from the gross estate as any other valid debt owed by him at the time of bis death. There is no claim here that the agreement was not contracted “ bona fide.” The provisions of the agreement for the setting up of a trust fund in the lifetime of the husband, or by a trust in his will, were permissive only, and did not alter or defeat the nature of his liability, or that of Ms estate, to pay the annuity. These provisions were privileges accorded to Mm. By the terms of the agreement, wMch permitted the testamentary trust, security was afforded to Ms former wife and Ms estate was relieved from the necessity of impounding a fund sufficient to pay the annuity for her life. Thus the rights of the beneficiaries in the estate could be more easily and promptly established after death.


Examining the facts in the present case in light of these decisions and in light of the definitions of “dwelling place” and “usual place of abode” one can only conclude that the defendant did not reside, sojourn or abide at his former residence at the time service was made, and that his former residence was not his actual "dwelling place” or "usual place of abode” at that time. The undisputed facts presented in the affidavits established that at the time of service the defendant was stationed in Korea; that the parties had been separated and divorced for over two years prior to the date of service; that the defendant had not returned to his former residence; that the husband was required to own the property at 88 Hawthorne Road, San Remo, New York, pursuant to the <mask> until the wife remarried or the children reached the age of 21; and that the defendant subsequently remarried and established a residence elsewhere. It is evident that when the defendant left his former residence that he intended it to be permanent.


In opposition to the motion, the defendant, pro se, indicates that she is willing to sell the house, however, she had “certain concerns” regarding the balance of the mortgage and equity in the house at present; who bore responsibility for repayment of any loans required to pay for mortgage, equity, and property taxes; whether there was proof that the plaintiff paid the mortgage after the <mask> was signed; her desire not to give up loss of inheritance or pension rights; the fact that mortgage payments were three months in arrears. As an “Exhibit” to her motion, defendant asserts that she “agreed to $449,000 [as a sale price for the house],” but not to reducing the price by $5,000 per month and not to the amount which has been offered to buy the house ($375,000). No defects were raised by the plaintiff with respect to the defendant’s affidavit.


As to plaintiff’s causes of action alleging a breach of the warranty provision, it is clear that plaintiff’s action is untimely. The <mask> at issue is a contract under New York law. (See, Borax v Borax, 4 NY2d 113 [1958]; see also, Schmitt v Schmitt, 123 AD2d 617 [2d Dept 1986], lv dismissed 69 NY2d 1038 [1987].) Whether plaintiff’s causes of action under counts 1 and 5 are viewed as alleging a breach of that contract in general, or a breach of the warranty provision in particular, CPLR 213 (2) requires that this action have been commenced within six years after the cause of action accrued. As to these claims, the cause of action accrued on March 25, 1982, when the parties executed the separation agreement. Since plaintiff did not institute this action until June 1993, counts 1 and 5 are time barred. (See, Schmitt v Schmitt, supra.)


*1020Although the Court of Appeáls has said that by such an agreement the husband does not recognize, and join with his wife in measuring, his persisting liability to her, and that in lump sum agreements the husband allegedly buys his release for a price, it nevertheless has not laid down any definitive rdle as to the validity of lump sum separation agreements. (2 Foster-Freed, Law and The Family, § 28:18, p 406; Jackson v Jackson, 290 NY 512.) Nevertheless, it has been specifically held that a lump-sum payment provision in a <mask> by which a husband attempts to purchase exemption from his continuing duty or attempts to purchase a release from his continuing obligation to support his wife, is void even though the sum be adequate (General Obligations Law, § 5-311 [formerly Domestic Relations Law, § 5]; Van Dyke v Van Dyke, 278 App Div 446; Goldman v Goldman, 282 NY 296; Kyff v Kyff, 286 NY 71; Jacobson v Jacobson, 140 NYS2d 917); for in order that such agreements be upheld and not deemed "void” they must call for " 'regular substantial, periodic payments’ ” representing a mutual admeasurement in dollars of the husband’s continuing obligation to support his wife (Haas v Haas, 298 NY 69, 72; Henderson v Henderson, 47 AD2d 801; Van Dyke v Van Dyke, supra, p 449; Nusbaum v Nusbaum, 280 App Div 315; Moat v Moat, 27 AD2d 895). "They will not be countenanced if they constitute an attempt to release the husband from such obligation. (Jackson v. Jackson, 290 NY 512, 516.)” (Van Dyke v Van Dyke, supra, p 449; General Obligations Law, § 5-311.) The theory of lump sum settlement has been extended also to a lump-sum payment plus weekly payments which are to continue for only a limited period of time. (22 NYCRR 699.9 [f] [4].) Rule 699.9 (f) (4) of the Supreme Court, Appellate Division, Second Department, provides:


In another portion of the same affidavit, the decedent herein used the following language: “The plaintiff’s statement in paragraph ‘ 10 ’ that the <mask> provides for the monthly payment to her for her lifetime is true. It is not true, however, that the payments will cease when I die. There is no such provision in the separation agreement.”


On April 14, 1981 Christine P. Foundas, the decedent, entered into a <mask> with John, her husband. Among other things this agreement provided that the wife would have custody of the children with visitation *974rights to the husband. Various provisions were included for the support of the children during minority and for the wife until her death or remarriage. Further the parties agreed that the husband would deliver a deed to the wife conveying all his right, title and interest to a parcel of land in Saugerties, New York, on which was situated a one-family dwelling. The separation agreement also contained two paragraphs purporting to be releases found in paragraphs “3” and “4”. Because of their importance in this proceeding, paragraphs “3” and “4” are set forth here at length:


Thereafter, in Hurley v Johnson (4 Misc 3d 616 [2004]), the trial court determined that a <mask>, which had not been acknowledged in proper form as of the time plaintiff sought a so-called “conversion divorce,” was enforceable since “acknowledgments . . . were [subsequently] added to the separation agreement ... in connection with plaintiffs reapplication for divorce” and such acknowledgments complied with the requirements of Domestic Relations Law § 236 (B) (3) (id. at 617).


Under the <mask> the testator covenanted and agreed to pay to his then wife the sum of $5,000 per year during his or her life and he also agreed to pay certain other debts amounting to approximately $1,300, and further that he would make a valid will bequeathing to his wife “ after the payment of his debts and funeral and testamentary expenses one-third of his estate, real and personal.” He further agreed that he would make no gift of any of his property in anticipation of death and in case of default specific performance might be enforced.


Before taking up the other issues there are a few matters upon which I think a word or two .should be said. I now have before me (it had not been presented to me until after my decision) the Meredith <mask> (Jan. 3, 1955) which immediately preceded the proceedings in Juarez. For its bearing upon the question of 1 ‘ divorce by agreement ” — by submission to a foreign jurisdiction which asks no more than such submission — I note that the agreement, after the usual provisions, including the one that its terms may be incorporated in a divorce decree recites that if there is no divorce by December 31, 1955 “ the agreement shall cease to be binding upon either of the parties for any purpose ”.


“A husband and wife, in entering into a <mask>, may include in that agreement provisions pertaining to the support of the children of their marriage.” (Matter of Boden v Boden, 42 NY2d 210, 212; emphasis added.) The absence of a support provision in a separation agreement or in the divorce decree in which the agreement is incorporated does not “eliminate *** either parent’s duty to support a child of the marriage * * * In the absence of an order of the supreme court or of another court of competent jurisdiction requiring support of the child, the family court may entertain a petition and make an order for its support.” (Family Ct Act, §461, subd [a].)


John P. DiBlasi, J. In Majauskas v Majauskas (61 NY2d 481, 485-486 [1984]), the Court of Appeals announced the rule that "[v]ested rights in a noncontributory pension plan are marital property to the extent that they were acquired between the date of the marriage and the commencement of a matrimonial action”. The question to be resolved on these summary judgment motions is whether defendant’s failure to inform plaintiff, prior to their execution of a pre-Majauskas <mask>, that his pension rights, whose existence were known to plaintiff, were marital property subject to equitable distribution, constitutes fraud and breach of a warranty of disclosure of assets, which would require the award of damages or rescission of the separation agreement.


Inasmuch as the judgment herein is neither appealable nor subject to the remedy of "civil revision” for fraud, the court now turns its attention to the question whether, notwithstanding the immunity of the judgment itself from attack for fraud under Dominican law, the plaintiff would be afforded relief under its laws insofar as fraud may affect the <mask> alone.


The motion is brought' in conjunction with a matrimonial action now pending in this court wherein the plaintiff seeks a divorce based upon a <mask> executed on or about the 8th day of October, 1971, by the plaintiff and the defendant, and filed in the office of the Clerk of Onondaga County on the 21st day of October, 1971. No request for temporary alimony is made.


The prime objective of the <mask> was to deal with and dispose of matters of right. There is no apparent intent to limit either’s privilege to give, or the other’s ability to take, as much or as little as either might choose to will to the other. As to the wife, the only language which is susceptible *415of being regarded otherwise in any degree is the last part of above-quoted paragraph 5, ending with the words, ‘ ‘ other rights which would otherwise inure to her benefit ”. But this expression must be interpreted in relation to the context in which it is found. The obvious over-all intent and purpose of the instrument was and is to provide for unquestionably relieving decedent’s property from dower or any other spousal incumbrance which it, apparently, was supposed might or could impede its free alienability by him as the sole owner during his lifetime, or by his legal representatives, distributees, legatees or devisees upon his death, as to any and all property of which he might die seized or possessed.


In brief, it does not appear that the common definition of the term "college” has changed much since Judge Lehman spoke for the Court of Appeals in 1941. While the Neighborhood Playhouse is no doubt a well-recognized school with a distinguished faculty training its students in the theatre arts, it does not lead to a degree, which appears to be a significant factor in the definitions of the term "college”. Thus, after much deliberation, this court finds that the Neighborhood Playhouse is not a "college” as contemplated by the terms of the parties’ <mask>.


Admittedly, a search of the County Clerk’s real property title and lien indices would not have disclosed Vita’s interest, though the civil actions index would have included her name and would have led the searcher to the fact that a judgment of divorce had been entered. Further inquiry would have revealed that Vita had the right to sole and exclusive possession of a residence, at Gerald’s expense, until one of the conditions (viz., remarriage) stipulated in the <mask> should occur, if ever. Such an interest, obviously, is inconsistent with an unfettered right of ownership, possession and use by Gerald Talandis, the holder of title.


5. That at the time of the execution of said alleged agreement, Exhibit “ A ” annexed hereto, and for a considerable period prior and subsequent thereto, plaintiff has been ill, nervous and in a rundown condition, (and her health has been impaired by reason of the continued cruel and inhuman behavior of the defendant, as previously stated,) and she was unable to judge wisely or prudently in relation to her affairs, or to comprehend and understand the full import of said alleged <mask>, and was readily susceptible to persuasion in respect to acceptance of the terms thereof. 6. That for many years prior to December 19, 1957, and up to and including that date and thereafter, the defendant has continuously concealed the sources and extent of his income and capital assets from the plaintiff; that up to the time of the• execution of said alleged agreement, Exhibit “A” annexed hereto, defendant has refused to reveal to plaintiff the source and extent of his income and capital; that at the time of the execution of said alleged agreement, Exhibit “A” hereto annexed, defendant still refused to reveal said information to plaintiff ; that on December 19, 1957, at the persuasions of her then attorney, Nathan Shapiro, the attorney for the defendant, and the defendant, and because of her ill health and nervous condition, as aforesaid, the plaintiff executed said alleged agreement, Exhibit “A” hereto annexed, without full or proper knowledge and information with respect to defendant’s true financial condition. *7167. That subsequent to the execution of said alleged agreement, Exhibit “ A ” hereto annexed, defendant has continuously refused to disclose any information whatsoever with respect to the sources and extent of his income and capital assets to plaintiff, and although plaintiff has duly demanded that her former attorney, Nathan Shapiro, deliver to her all papers and memoranda in connection with her affairs with the defendant, such demands have been refused by the said Nathan Shapiro. 8. That upon information and belief, at the time said alleged agreement, Exhibit “A” annexed hereto, was executed, defendant was a man of substantial means, worth in excess of three and one-half million dollars, which fact plaintiff recently discovered, and was in ignorance of at the time of the execution of said Exhibit “A”. 9. That upon information and belief, the defendant is employed by various corporations, which he owns and controls, and owns various partnership interests; that subsequent to the execution and acknowledgment of said alleged agreement, Exhibit “ A ” hereto annexed, plaintiff has been advised that defendant receives a salary and other forms of remuneration and emolument therefrom well in excess of $85,000 per year, and that his present personal net worth is in excess of four million dollars. 10. That the provisions of said alleged agreement, Exhibit “A” annexed hereto, were and are unjust, inequitable and unconscionable, and the allowance therein provided is grossly inadequate to provide plaintiff with the comforts and necessities of life, to which she is entitled by reason of defendant’s station in life, and the manner and style in which she and the defendant lived as husband and wife for many years. 11. That said alleged agreement, Exhibit “ A ” annexed hereto, is invalid, in that the defendant failed to disclose to the plaintiff the source and amount of his income and the extent of his capital assets at or prior to the time said alleged separation agreement was executed; that had plaintiff knowledge of defendant’s true income and capital, as aforestated, the plaintiff would not have executed and acknowledged Exhibit “A”. In Hunter v. Hunter (10 A D 2d 291) decided by the Appellate Division, First Department, on April 12, 1960, the court stated (p. 292): “ Notable in this case is that the plaintiff wife does not disclaim sufficient knowledge of the husband’s assets and income before the separation” and further (p. 293): ‘ ‘ Indeed, the record in this case contains no flat assertion by either party as to the husband’s aggregate income before or after the separation.” And further (p. 294): “ Nevertheless, despite the cautious view with regard to granting examinations before trial in matrimonial actions, the courts have not hesitated to allow an examination if it will primarily serve a legitimate purpose. One such purpose would be to provide a wife with the necessary information to establish the pre-separation standard of living, the adequacy of such standard, or the present ability of the husband to maintain the appropriate standard, provided there is a showing that because of her ignorance of the facts or for other reasons it is desirable that she elicit such information before trial. Examinations with respect to these matters are permitted only because, substantively, they are *717relevant to the amount of the ultimate award to which the wife may be entitled.”


Michael ("Mike") and Margaret ("Missy") were divorced on May 5, 2014. Prior to the decree of dissolution being entered, Mike and Missy had negotiated and executed a <mask>, which divided the parties' many assets. A mediated agreement, which was incorporated into the separation agreement, indicated that Missy would retain the real property located at 535, 540 and 561 E. Second Street in Lexington, Kentucky (the "Fleetwood Garage"), which had a stated fair market value of $1.585 million. The agreement further provided that "[u]nless otherwise noted herein, everything located in the Fleetwood [G]arage" would go to Mike. Items specifically excluded were certain vehicles and furniture from the parties' marital residence that were being stored in the Fleetwood Garage. Per the terms of the separation agreement, Mike leased the Fleetwood Garage from Missy through November 2014. Among the items Mike *313took with him when vacating the Fleetwood Garage was a free-standing canopy bar (the "Bar").


*603(1) The trust for the testator’s son, Donald Bloomingdale, designated in the will as Trust “ B,” is entitled to priority over the provisions for the benefit of the testator’s divorced wife, Rosalie Banner Bloomingdale, and his widow, Geanne Hughes Bloomingdale. The provisions for Donald were in performance of the terms of the <mask> entered into between the testator and Rosalie Banner Bloomingdale. So far as Donald is concerned, that agreement is valid and enforcible in his favor. Irrespective of the provisions for the other beneficiaries in the will and codicil, the obligation to bequeath $2,000,000 in trust for Donald is separate and apart from the provisions made by the testator for the benefit of Rosalie Banner Bloomingdale, and must first be given full force and effect.


The court can, however, direct the wife to sign a <mask> that tracks the agreement reached by the parties in open court. In light of the fact that the wife expressly agreed to enter into and sign a separation agreement that encompassed the settlement reached, the signing of such agreement is a ministerial act and a mere formality. (See Rubenfeld v Rubenfeld, 279 AD2d at 153 [affirming trial court’s order, in accord with an open court stipulation of settlement, compelling the wife to execute documents necessary to effectuate the separation of the marital property]; see also Vider v Vider, 46 AD3d 673 [2d Dept 2007] [lower court properly directed the plaintiff to execute certain deeds based on oral stipulation of settlement placed on the record]; Erdogan v Simone, 69 AD2d 931 [3d Dept 1979] [affirming trial court’s granting of the plaintiff’s motion to compel the defendant to execute an agreement pursuant to a stipulation of settlement].) Thus, the husband is directed to provide the wife with a written separation agreement that encompasses only the terms of the open court stipulation, and no other terms, and the wife is ordered to sign such agreement.


The motion is opposed by defendant on the ground that the action is based upon a <mask>. It is her position that a separation agreement is not an instrument for the payment of money only within the meaning of CPLR 3213 and, hence, the use of the procedural device afforded by that statute is not available to the plaintiff. (Wagner v Cornblum, 36 AD2d 427). Defendant also asserts that she has valid defenses to the action in that she was coerced, through physical force, to sign the December 29, 1973 modification of the separation agreement which provided for a reduced amount of support for herself and her children and added the provision for the sale of the house. She also claimed that if the house is sold she will be unable to provide a home for herself and the children.


While it is clear that separation agreements are not binding on the courts with regard to child support in that the courts are not bound by the amount of support agreed to by the parents (Riemer v. Riemer, 31A D 2d 482; Moat v. Moat, 27 A D 2d 895), it does not follow that parties are not bound by such agreement. The law of New York has always been that so long as a support agreement stands unimpeached, the court cannot alter or modify its provisions (Galusha v. Galusha, 116 N. Y. 635). The contractual obligations continue even if incorporated in a matrimonial decree, provided they are not merged therein (Hettich v. Hettich, 304 N. Y. 8, 14). As the court pointed out in Goldman v. Goldman (282 N. Y. 296, 305), “ the direction of the court that the defendant shall pay to the plaintiff a sum less than he agreed to pay does not relieve the defendant of any contractual obligation. The direction of the court may be enforced in maimer provided by statute and plaintiff may still resort to the usual remedies for breach of a contractual obligation if there has been such a breach ”; and in McMains v. McMains (15 N Y 2d 283, 28A-285) it was held that a <mask> u does not prevent a later modification increasing the alimony when it appears not merely that the former wife wants or by some standards should have more money but that she is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge ”, and in that case the court announced as parallel and congruent rules: “ first, that support agreements covered into divorce judgments are valid and binding until set aside for ab initio invalidity (Galusha v. Galusha, 116 N. Y. 635; Winter v. Winter, 191 N. Y. 462; Schmelzel v. Schmelzel, 287 N. Y. 21, supra); second, that subsequent decree modifications leave the prior nonmerged support contract still in existence qua contract (Goldman v. Goldman, 282 N. Y. 296, supra, and Holahan v. Holahan, 274 App. Div. 846, affd. 298 N. Y. 798).” (See, also, King v. Schults, 29 N Y 2d 718; Skolnik v. Skolnik, 75 Misc. 2d 805.)


On the cause of action to set aside the March 25, 1958 <mask>, plaintiff fares no better. During the trial the complaint was amended to allege that plaintiff had expended all sums received by her under the separation agreement for necessary support and on the evidence presented, the court so finds. While section 5-311 of the General Obligations Law proscribes a contract “ to relieve the husband from his liability to support his wife ”, that provision does not necessarily invalidate a contract providing for a lump sum plus periodic payments over a fixed number of years (Rubinfeld v. Rubinfeld, 264 App. Div. 888, app. dsmd. 289 N. Y. 838; Levy v. Dockendorff, 177 App. Div. 249). Here, as in the Rubinfeld case, the “ agreement between the parties was valid as measuring the support to be provided by defendant for five years, but in so far as the agreement purported thereafter to exempt him from his duty to provide continuing support for plaintiff, it was invalid ’ ’. Invalidity of the provision exempting defendant is of no moment, however. Defendant’s obligation prior to the Mexican decree has been carried out, and after that decree was validated by plaintiff’s appearance he had no obligation to support her. Since no useful purpose will be served by declaring invalid the exemption provision of the separation agreement, the court in the exercise of discretion will decline to do so (see Lake v. Lake, 136 App. Div. 47). The foregoing constitutes the decision of the court pursuant to CPLB 4213, subd. (b).


Mr. Santamaría argues that New York courts have no power to alter the Mexican decree, which is modifiable, he says, only by Mexican courts according to Mexican law. He asserts that since the parties could not confer this power upon this court by stipulation, the New York order made incorporating the <mask> in the Chihuahua Civil Court judgment is void. He suggests that Mrs. Santamaría can proceed to alter the divorce decree only by way of traveling to Mexico and initiating the proper proceedings there.


We now turn to the family court's finding that KRS 403.250(1) gave it authority to modify the Settlement Agreement despite the presence of non-modification clauses. Under KRS 403.180(1), the parties to a dissolution of marriage action may enter into a written <mask> containing provision for maintenance and the disposition of property. Unless the family court finds the separation agreement unconscionable, the agreement's terms shall generally be binding on the parties and the court. KRS 403.180(2). However, KRS 403.250(1) states that "[e]xcept as otherwise provided in subsection (6) of KRS 403.180, the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." Under KRS 403.180(6), the parties to a dissolution of a marriage "may expressly preclude or limit modification of terms if the separation agreement so provides." By including such a clause in the separation agreement, "the parties may settle their affairs with a finality beyond the reach of the court's continuing equitable jurisdiction elsewhere provided." Brown v. Brown , 796 S.W.2d 5, 8 (Ky. 1990).


The deceased and his first wife entered into a <mask>, wherein he agreed to designate her as the beneficiary of a life insurance policy. He, additionally, agreed to bequeath and devise at least one seventh of his estate to each of two sons of his marriage to the first wife. Decedent also entered into a separation agreement with his second wife, wherein he agreed to maintain a life *1022insurance policy for the benefit of his second wife and another such policy for the benefit of a son of his second marriage. The deceased complied with the terms of both separation agreements. There is no provision in his will with regard to the apportionment of estate taxes.


It appears that there is no provision in the <mask> relieving the wife of her liability imposed by section 101 of the Social Welfare Law, if of sufficient ability, to support her husband, if he is liable to become in need of public assistance. Whether such a provision would be binding on the objectant or would be void or voidable as against public policy (see General Obligations Law, § 5-311 [formerly Domestic Relations Law, § 51]), is not before the court.


Perhaps the defendant would be correct if the issue in this case were the periodic support payments set forth in paragraph 9 of the <mask>. However, that is not the situation. The separation agreement at bar establishes two types of payments. Paragraph 9 provides for periodical support to the wife which obligation continues until each child attains the age of 21, becomes sooner self-supporting or marries or completes a college education.


Matter of Baratta (199 Misc. 246, affd. 279 App. Div. 992) concerned a <mask> which did not expressly specify that payments by the husband were to continue during the wife’s life and in fact the agreement was silent as to the duration of the payments. So also the agreement considered in Lepsch v. Lepsch (275 App. Div. 412) failed to evidence any intention to continue payments after the husband’s death. This lack of a clear contractual provision also controlled the decisions in other cases relied upon by the executor herein.


If the testator had obligated himself to leave his wife half of his net estate, the agreement would have been enforcible. (Matter of Bloomingdale, 278 N. Y. 435.) He did not do so. He made his will after the divorce and on December 5, 1940. The dispositions contained in it were based upon a justified belief in his mind that his former wife had no legal right to disturb them. The fact that she moved to alter the separation *945agreement only after Ms death is indicative of the inequities inherent in her present demands. The interests of the wife in the negotiations and consummation of the <mask> were protected by independent attorney chosen by her.The respondent is bound by the terms of her agreement and charged with knowledge of its effect. (Pimpinello v. Swift & Co., 253 N. Y. 159; Matter of Moore, 165 Misc. 683, affd. 254 App. Div. 856, affd. 280 N. Y. 733.) The agreement cannot be rewritten by the court to cure a disappointment or a discovery arising subsequently that the testator left a very large estate. The respondent suffered under no mistake of law in obtaining a divorce. In the light of history it might appear to her to be a mistake of judgment on her part. She took a handsome money settlement from her husband. She procured her own freedom and deliberately chose to forfeit all her rights by the dissolution of the marriage in Nevada. No right of election whatsoever exists in her favor and she has no interest in this estate.


*571In the second <mask> the following paragraph appeared: “ 5. Within thirty (30) days after the execution of this agreement, the husband shall effect life insurance covering his life in the principal amount of not less than Ten Thousand Dollars ($10,000.00) for the benefit of the children and shall within ninety (90) days after the execution of this agreement effect additional life insurance covering his life in an additional amount of not less than Ten Thousand Dollars ($10,000.00) for the benefit of the children, and shall at all times keep such insurance in full force and effect, so long as each child shall live, and shall pay all dues, premiums and assessments thereon, and each year transmit to the wife receipts showing that such dues, premiums and assessments have been paid. The husband shall not borrow against the insurance, nor shall he in any manner pledge or encumber the same.”


And that phase is here intensified by the failure of “ Albert’s ” mother’s second marriage. Unfortunately for him, this proceeding has revived the tensions which led to the original divorce and made him the victim of the resultant renewed hostility between the parents. Thus, although the <mask> provisions incorporated in the Florida decree contemplated that the child might reside in Florida and become available for visitation in New York State only during the summer months, respondent attempts to justify his inexcusably stopping in June, 1953, even the $25 weekly payments on the asserted ground that “ Albert ” shows no respect or affection for him and that therefore he refuses to make any further payments for what he callously characterized as a “ dead horse ”.


The fact that the checks accepted and cashed by the plaintiff Millicent Magrill embraced support provided by a <mask> which was later approved and ratified in a decree of divorce rendered on the appearance of both parties did not prevent waiver of such support when there is no law preventing it. (Rehill v. Rehill, 281 App. Div. 855, revd. on other grounds 306 N. Y. 126.) Payments for the support of a child, though required to be made by agreement and judgment, may likewise be waived. (Axelrad v. Axelrad, 285 App. Div. 903, affd. 309 N. Y. 687.) Waiver, however, is “the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it.” (Werking v. Amity Estates, 2 N Y 2d 43, 52; Cutler-Hammer Inc. v. Troy, 283 App. Div. 123, 125.) In addition, under paragraph “ eighteenth ” of the separation agreement set forth above, the waiver of the amount of any particular weekly installment by the acceptance and retention of a check for less than the aggregate amount called for by the agreement did not terminate it eo instante with respect to future support in the full amount therein provided. It has been held, moreover, that in the absence of an action to set aside a separation agreement it must stand unless repudiated by both parties. (Galusha v. Galusha, 116 N. Y. 635; Gavellier v. Gavellier, 4 A D 2d 600; Spade v. Spade, 6 Mise 2d 170; O’Hara v. O’Hara, 68 N. Y. S. 2d 649.) It follows, that accord and satisfaction if found to be any defense within the principles above set forth was only a partial defense as to the weekly installments of support represented by the checks that had been accepted and cashed. (Civ. Prac. Act, § 262; Rehill v. Rehill, 306 N. Y. 126, 133.)


*68Decedent was survived by his said wife and daughter who are the only parties concerned with this proceeding. It appears that they concur in the view that the provisions of the <mask> and payments made by the husband under the agreement are inconsistent with the provisions of the-will for -the benefit of the wife, and as to such provisions, it was the intent and effect of the agreement .to nullify and revoke the will. (Titus v. Bassi, 182 App. Div. 387.) The wife has in fact executed an assignment and release in favor of the daughter for all her rights in the estate under decedent’s will including-any of decedent’s property, real or personal.


The antenuptial agreement in this case is not complex. The only mention of the marriage is in the recital quoted above which referred to the testator’s then incapacity to contract a new marriage. The petitioner waived any right to share in the estate *929or to elect to take against the will of the testator dated January 26, 1965 (or any other will), and in consideration of that promise the testator agreed that he would not make any testamentary provision that would adversely modify the provision which had been made for her in that will or that if he should revoke that will, he would execute a new will which would contain a substantially similar provision for her. That will (which has now been admitted to probate) gives her the income from 50% of the residuary estate (later increased by codicil to 55%). The only provisions in the will which encroach upon the residuary estate are one for his former wife which carries out the terms of the <mask> of 1953 and a general legacy to a friend in the sum of $100,000. The petitioner’s legacy refers to her merely as a friend (the will having antedated the marriage by some months) but the codicil reflects her status as wife. Petitioner thus had interests under the will which were not dependent upon her marriage to the testator. Nothing in the antenuptial agreement bound the testator to procure a divorce. Nothing bound either party to marry the other. The agreement did not have a direct tendency to destroy the testator’s then subsisting marriage, and the court holds that the agreement is not invalid as one directly tending to alter or dissolve the marriage.


The court finds that the clear and unambiguous language of the parties’ <mask> dated June 12, 1979 evinces the parties’ intent that the provisions of the agreement relating to alimony were to be set forth in any subsequent judgment of divorce so as to create a judicial mandate with reference thereto. (See, Jensen v Jensen, 110 AD2d 679.) Amendment of a proposed judgment of divorce to include decretal provisions setting forth, at length, the terms and conditions of a stipulation or agreement, not set forth in the *488original judgment is appropriate where such amendment will effectuate the original intent of the parties. (Filippini v Filippini, supra; Cohn v Cohn, 100 AD2d 528.)


On June 8, 1966, decedent and his wife, Harriet H. Haley entered into a written <mask>, in and by the terms of which each party waived and relinquished their rights, under law, to share in the estate of the other, to elect against the last will and testament of the other, but not to waive any voluntary testamentary provision which might be made in his or her favor by the other.


First, he consulted a physician regarding possible reversal of his vasectomy and, when the doctor told him that his wife should see her doctor about other avenues to having a child, he reported that to his wife. (Record at 199.) Second, after plaintiff saw her doctor and presented the “Frozen Donor Semen Specimen Agreement” he signed it. (Law guardian mem, exhibit 2; record at 135-136.) He claims he signed under duress (record at 104), but nevertheless admits that he read the agreement before signing it. (Record at 134.) Third, he also signed the portion of the agreement for payment by credit card and he paid the bills out of their joint checking account. (Law guardian mem, exhibit 2; record at 78-79.) Fourth, after the agreement was returned he knew his wife was reviewing catalogs with donor characteristics and that she picked a donor with characteristics similar to his. (Record at 70-71, 154, 195-196.) Fifth, he knew when she went to the doctor’s appointment to have the insemination performed (record at 140, 200-202) and he did not tell her not to do it. (Record at 201, 207.) He took care of the other two children while she was at the doctor. (Record at 205.) Sixth, after the insemination was performed, despite his objections, he continued to live with his wife and to sleep with her. (Record at 140-142.) Seventh, he read and signed the <mask> that included the provision stating that Alyssa “was conceived through a mutually agreed upon course of artificial insemination.” (Record at 166.) He was asked at least four times about whether there was a mutual agreement to the insemination and each time he evaded a direct answer to the question. (Record at 106, 139, 166-167, 180-181.) Lastly, after plaintiff became pregnant while they were living together and before they separated, he admitted on cross-examination that he assumed he would take the role of father and never told plaintiff he would not support the unborn child. (Record at 74, 176, 180.)


It is to be noted that in answer to the complaint for a (conversion) divorce the defendant herein has merely interposed denials, but not an unequivocal denial of the alleged <mask> having been executed by her; nor has defendant interposed any affirmative defense asserting the rescission or repudiation by her of said agreement even though she denies plaintiff’s "substantial performance” thereof. Likewise, defendant does not affirmatively seek to have the agreement declared rescinded or invalidated for any reason.


In the case at bar, defendant has asserted that he has been forced to retire due to ongoing emotional problems necessitating ongoing psychological treatment. Further, this early retirement has resulted in a massive change in his financial circumstances, wherein previously he was grossing approximately $1,051.25 biweekly, and subsequent thereto is grossing only $450 biweekly. Additionally, pursuant to the divorce decree and <mask>, the plaintiff is presently paying $75 per week for the support of the infant issue of the marriage, which he contends he is unable to pay due to his greatly changed financial circumstances. In this regard, the financial affidavit of defendant shows that his present expenses are approximately $1,032 per month, while his income is only $967.50 per month. *58No information is provided the court as to plaintiff’s financial circumstances, or her ability to afford a readjustment of the support obligations of their child, or as to what are the support needs of this child. An unforeseen change of circumstances, a concurrent showing of need, and the financial capacity of each parent to contribute to the support of the child are necessary elements in considering defendant’s request to modify the defendant’s present child support responsibilities (Goldman v Goldman, 69 AD2d 758, 759 [1st Dept 1979]). Therefore, this matter must be referred to Trial Term for a hearing on defendant’s request for a modification of his child support obligations set forth in his judgment of divorce and separation agreement.


We affirm the Oldham Family Court's May 25, 2016 and June 9, 2016 orders denying Clyde's motions to set aside the <mask> as unconscionable. We reverse the family court's August 19, 2016 order denying his motion to modify the maintenance provision upon Melissa's cohabitation and denying Clyde's request to deduct any maintenance paid for tax purposes. On these issues we remand for further proceedings as discussed above.


In most instances the marriage contract is deemed to be of very serious import by the parties to it. In some instances separation agreements are entered into without due and deliberate consideration. But the law and the instrumentalities for its administration instituted amongst us for the purpose of preserving to all of us our right to even-handed justice and the preservation of those institutions which the law and social usage and civilization have developed, must of necessity give the <mask> between husband and wife weight, force, validity and enforcibility.


In March 1993, plaintiff commenced this action for divorce; defendant apparently answered and asserted a counterclaim for plaintiff’s alleged breach of the <mask>. Plaintiff thereafter moved to, inter alia, strike defendant’s counterclaim. Supreme Court granted plaintiff’s motion in this regard, finding that the January 29, 1993 letter from defendant’s attorney constituted a rejection and counteroffer. This appeal by defendant followed.


Paragraph “3” of the <mask> stated above is found here to be but a general release only. EPTL 3-4.3 provides: “A conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it.”


In Rosenthal v. Rosenthal (230 App. Div. 483) the First Department in 1930 likewise followed the cases set forth above. This action was by a wife to set aside and cancel a <mask>, and the plaintiff sought an examination with reference to the husband’s financial condition during the year the agreement was made and up to the time of trial, in order that she might ascertain the financial condition of the husband and obtain support in keeping therewith. The court said (p. 485) : “ In Harding v. Harding (203 App. Div. 721), which was after-wards affirmed by the Court of Appeals (236 N. Y. 514), the court held that a wife who has brought an action to set aside *714a separation agreement on the ground that the lump sum which her husband paid to her was inadequate, inequitable and unjust, and that the contract was improvidently made by her, is entitled to examine her husband before trial as to his present financial condition, and should not be limited to an examination of his financial condition at the time the agreement was made, and that a husband’s obligation to support his wife exists notwithstanding any separation agreement or any payment made thereunder to his wife.”


In the leading case,of a downward modification because of the divorced husband’s decreased income since the divorce, the court indicated its assumption that the decreed amount, while incorporated from a <mask>, had been commensurate with the husband’s actual income at the time of the decree. (Goldman v Goldman, 282 NY 296, 299.) Nor does there appear to be any case of reference to a year’s income as the base circumstance where, as here, the decreed alimony clearly was not fixed in relation to respondent’s income for that year.


However, where a valid agreement is incorporated into a decree but is not merged therein, the power of the court becomes limited and the burden of showing on the party seeking the change is correspondingly greater. In McMains v. McMains (15 N Y 2d 283) where a valid <mask> whose terms were incorporated into a divorce decree but which survived the decree, it was held that a wife who sought an increase of support had the burden of showing that she would be unable to support herself on the amount allowed and would be in danger of becoming a public charge. Where sufficient need appears oh either side such a decree may be modified, without a discussion of the remaining effects of the agreements.


*185The relator first married the respondent on December 21, 1947, when she was 16 years of age. Stephen was born on March 16,1949. On November 13, 1950 the parties entered into a <mask>, by the terms of which the sole and exclusive custody of Stephen was given to the relator; when the respondent obtained a divorce from the petitioner on February 28, 1951 in Arkansas, the terms of that separation agreement were incorporated in the decree.


If there was a provision in the <mask> or in the judgment requiring plaintiff to obtain defendant’s consent as to the choice of the child’s college, then Balk v Rosoff, Halligan v Wesdorp and Collins v Collins would be far more relevant to this case. Because there is no such provision, the cases are of limited applicability. Nevertheless, defendant relies heavily on them, citing the cases for the proposition that the SUNY cap should be applied where the proponent of private education fails to establish that the private college in question provides a superior education to that of a state college. In so doing, however, defendant is expanding the reach of these decisions far *1010beyond their particular facts. What defendant has done is seized upon language in the cases that might appear to support his position that if Syracuse University and SUNY Binghamton are of similar academic caliber then his contribution should be pegged to what it costs to attend Binghamton.


The facts reveal that defendant and Edward Barth were the owners as tenants by the entirety of certain real property *575located in Shirley, New York, having taken title to said property by deed dated September 28, 1971. On or about October 24, 1975, defendant and Edward Barth entered into a written <mask> whereby defendant was given the right to exclusive possession of the former marital residence until such time as the youngest child of the marriage becomes emancipated. Edward Barth thereafter filed a petition in bankruptcy and by deed dated June 2, 1977 and recorded on November 16, 1981, Michael F. Friedman as trustee of Edward J. Barth, Jr., bankrupt, transferred the interest of Edward Barth to plaintiff herein. Defendant and Edward Barth were subsequently divorced. The separation agreement, which granted defendant exclusive possession of the marital premises, survived and did not merge in the judgment. Plaintiff commenced this action for partition of the real property in question and now moves for summary judgment on the complaint.


As was pointed out in the prior decision, the donee of the power of appointment conditioned her gifts to her grand*460daughter and great-granddaughter upon their releasing her son from his obligations under a <mask> by which he had bound himself to provide for their support out of his interest in the estate of the testator. The granddaughter and the general guardian of the infant great-granddaughter of the donee have indicated their intention of perfecting the legacies upon the terms prescribed. It is the position of certain of the assignees-of the life tenant’s son that the bequests to the appointees are liable for the payment of their assignments to the extent that the property which the son will receive under the appointment is insufficient to satisfy them. The position of the assignees in this connection is wholly without foundation or merit. Neither by implication nor purpose was the mother of their assignor a party to her son’s assignments nor was she under any obligation to assume his obligations or to compel her appointees to do so as the assignees suggest. The court accordingly holds that neither of the other appointees is under any obligation to contribute to the fund required for the satisfaction of the assignments and that these are payable to the extent the property per-' mits solely from that part of the principal passing to the assignor under the will of the testator and the exercise of the power by his mother.


In this case the Appellate Division affirmed the judgment of the trial court which had approved the Surrogate’s determination that :“A careful reading of the <mask> fails to disclose an intent to revoke the will. No reference whatever is made to the testamentary instrument throughout the whole document, nor is there any language in the same susceptible of being understood as a revocation of the will offered for probate. ’ ’


Michael’s main contention is that Supreme Court erred in confirming that part of the Referee’s report awarding $6,604.03 of surplus moneys to Roseann based on a provision in the stipulation which provided that Roseann was to receive said amount, which represented one half of Michael’s savings and security plan and was to be payable "after the martial residence is sold and/or transferred to one of the respective parties or sold to a third party”. He argues that the foreclosure sale should not be considered a sale to a third party and that the $6,604.03 was expressly conditioned on a voluntary sale. We find no merit to this contention since the stipulation should not be read in such a limited manner, particularly in view of the fact that the $6,604.03 was noninterest bearing and was Roseann’s share of Michael’s savings and security account, which payment she had agreed to delay until the sale or transfer of the marital home, allowing Michael to keep his savings intact and to suffer no adverse tax consequences for early withdrawal. Therefore, we find the Referee was correct in characterizing a foreclosure sale as a sale within the terms of the <mask>, and that Supreme Court’s confirmation of this award to Roseann was proper.


Pursuant to a <mask> which was subse*781quently incorporated but not merged into a judgment of divorce, petitioner and respondent shared joint custody of their two children. Respondent retained physical custody of the children, while petitioner had visitation rights and was obligated to pay child support. Petitioner thereafter sought sole custody of both children on the grounds that respondent was not providing for the children’s physical and emotional needs by failing to provide medical attention when necessary, failing to feed and clothe them properly and in using excessive corporal punishment. Respondent opposed the petition and cross-petitioned for sole custody.


Prior to Kaplan v Kaplan (82 NY2d 300 [1993]) an argument could be advanced that Rubenstein v Mueller (19 NY2d 228 [1967]) constituted precedent for concluding that any provision in a <mask> relating to the disposition of property after the decedent’s death is “but an incident to the over-all settlement” and, therefore, based upon equitable considerations, the rights of a former spouse and children under the agreement are subordinate to a surviving spouse’s elective share (see Matter of Dunham, 63 Misc 2d 1029 [1970], affd 36 AD2d 467 [1971], Iv denied 29 NY2d 485 [1971]). However, after Kaplan v Kaplan (82 NY2d 300 [1993]), and notwithstanding that Kaplan did not deal with the issue of an elective share because the decedent died prior to the effective date of EPTL 5-1.1-A (b) (1) (G), such an argument is no longer tenable with respect to rights to pension benefits contained in separation agreements providing for the equitable distribution of marital property. The Kaplan case clearly holds that former spouses and dependent children obtain a present property right in the spouse’s pension death benefits where such rights are granted in a separation agreement which equitably distributes the marital property and fixes the support obligations of the parties to the agreement. Thus, reading Rubenstein v Mueller (19 NY2d 228 [1967]) in conjunction with Kaplan v Kaplan (82 NY2d 300 [1993]) leads to the conclusion that the same equitable considerations that warrant the finding that a surviving spouse may not take an elective share against property passing to the beneficiary of a joint will where her husband already received his former spouse’s property under the joint will, warrant a finding that the surviving spouse may not take an elective share against marital property (pension benefits) irrevocably transferred in accord with the terms of a separation agreement which divides marital property and fixes support obligations.


It is clear to this court that a woman who entered into a <mask> providing for her support cannot be deprived of this right by virtue of a foreign divorce obtained by her hus*1001band. Public policy, statutory enactments and courts’ decisions are unanimous in prohibiting the travesty which would take place were any other conclusion adopted. Accordingly, the defense of a foreign decree is stricken.


The respondent mother is married to the nonrespondent father. The subject child is the issue of this marriage. The respondent mother and the nonrespondent father reside in separate households, with the nonrespondent father maintaining his residence within New York County. There is no preexisting determination regarding the legal custody of the subject child, either through a formal <mask> or a court order. Accordingly, legal custody of the subject child rests in both the respondent mother and the nonrespondent father. Thus, this child protective proceeding is properly within New York County because New York County is a "county in which the person having custody of the child [the nonrespondent father] resides or is domiciled.” (Family Ct Act § 1015 [a].)


*467Meanwhile, also, on January 27, 1945, the mother had instituted in the Supreme Court, Queens County, an action against the father praying that the afore-mentioned <mask> he declared null and void for fraud in inducing its execution and because of the asserted inequity and inadequacy of its provisions, the complaint alleging that “ defendant is possessed of property of the value of at least $75,000. and, upon information and belief, the defendant earns $35,000. per annum and did earn in the years 1943 and 1944 the said sum.”


The late Surrogate Henderson, in Matter of Stolz (145 Misc. 799, 801) decided a case similar to the one at bar here, stating: “ The decedent in her lifetime could not have succeeded in an action for separation after the agreement of March 23, 1915. *823In 1912 the decedent left the claimant. Even if it is assumed, as the executor contends, that she was justified in leaving by reason of the cruel treatment of her husband, there was no abandonment by the husband. After the <mask>, there could be no abandonment, for the decedent consented to living separate and apart from her husband. (Powers v. Powers, 33 App. Div. 126.) To constitute an abandonment there must be a desertion without consent. The claimant performed his part of the separation agreement. No sufficient grounds to sustain a judgment of separation either for abandonment or neglect or refusal to provide exists.”


Nonetheless, in analyzing these relationships in the twenty-first century, the Court of Appeals has signaled a shift away from “morality” — the shared bedroom and sexual relationship — to a more realistic and more provable “shared economic unit” in defining the “intimate relationships” that allow a payor spouse to discontinue paying maintenance. This shift in thinking is manifest by the Court of Appeals in Graev v Graev (11 NY3d 262 [2008]). Graev was not decided under Domestic Relations Law § 248. The sole issue was the interpretation of the term “cohabitation” in a <mask>. But the tussle between the four-member majority and three-member dissenting opinion involved whether evidence of “economic interdependence” was relevant in deciding whether cohabitation occurred. The ex-wife argued that cohabitation did not occur because the friend was economically independent. He owned and lived significant time in his own house and did not contribute to the ex-wife’s housing or other personal costs. The majority held that “cohabitation” was the equivalent of “living together,” and it was unclear whether that meant that the ex-spouse’s economic life was intertwined with the friend. In reaching this conclusion, the Court majority acknowledged that several Appellate Division decisions had equated cohabitation to “changed economic circumstances.” (Graev at 272; Matter of Ciardullo v Ciardullo, 27 AD3d 735 [2d Dept 2006]; Clark v Clark, 33 AD3d 836 [2d Dept 2006].) The majority even admitted that its own precedents — a one-line affirmance of Scharnweber v Scharnweber (65 NY2d 1016 [1985]) — may have contributed to that mistaken assumption by the Appellate Divisions. The majority corrected this mistaken assumption: “While more recent Appellate Division decisions — particularly Ciardullo and Clark— *731may be read to imply, as the Appellate Division held in this case, that there can be no ‘cohabitation’ without changed economic circumstances, we have never taken this position and decline to do so now.” (Graev at 273.) While the majority declined to expand their holding, nonetheless, four Court of Appeals Judges concluded that functioning as “an economic unit” or “changed economic circumstances” could be factors in resolving whether cohabitation existed.


I hold that by the use of the words “ for the hying expenses of himself and family ” the testator intended that such income must be paid for the support of the widow and son of Fred Sewell. (Haynes v. Sherman, 117 N. Y. 433; Oberndorf v. Farmers’ Loan & Trust Co., 208 id. 367; Ireland v. Ireland, 84 id. 321; Matter of Yard, 116 Misc. 19.) The gift was intended for the joint support of Fred Sewell’s family. The direction to pay the income for that purpose was not a personal benefit for the son of the testator, but payment was to be continued after his death until the date fixed for the termination of the trust. In Haynes v. Sherman (117 N. Y. 433, 436) there was a gift “ to my wife Catharine M. Sherman, in trust, nevertheless, to have and to hold the same and use so much of the income and principal as she may deem necessary for her support and the support of our children, until our youngest child now living shall arrive at the age of twenty-one years.” The Court of Appeals *204held that the children would have an enforcible right if the wife died before the youngest child became of age to compel the application of the income to their support. The opinion states: “ It cannot be well said that this trust was limited upon the life of the widow and to terminate at her death. It is doubtless true that the testator expected that his wife would live to the termination of the trust. But the trust was for the benefit of his children as well as his wife, and they have an interest in its execution. * * * The trust was not so far personal that it would disappear with the death of the widow.” In Oberndorf v. Farmers’ Loan & Trust Co. (208 N. Y. 367, 370) the conditions attached to the gift of income were almost similar to those contained in the will here. The income was to be paid “ to my son, William D. Oberndorf, during the period of his natural life, for the benefit of himself and his family.” The wife brought an action in equity to have the will construed and to have it adjudged that the trustees pay to her annually the necessary expenses of her support, and particularly the amount fixed by a <mask> entered into between herself and her husband, the life tenant. Judge Gray in his opinion pointed out that the word “ family ” included the wife of the life tenant. He further observed, “ the Words ‘ for the benefit of himself and his family ’ are explanatory of a testamentary purpose, which a court of equity may enforce, upon it being made to appear that that purpose is nullified by the beneficiary’s conduct. * * * • Oberndorf [the husband] was not solely interested in the trust estate; he Was clothed with a power, in respect thereof, for the benefit of another, his wife, as Well as of himself.” (Citing Ireland v. Ireland, 84 N. Y. 321; Haynes v. Sherman, 117 id. 433.)


Note must also be made of the fact that what the agreement purports to assign, effective after testator’s death, is the right “to receive” 50% of the revenues. It does not give her any right to manage,' sell, lease upon royalty or otherwise administer the properties themselves or to interfere with them. The agreement gives her merely a right to receive revenues, a right that presupposes an overall management by someone else. It is significant, too, that the <mask> covered not only writings theretofore composed (that is, up to June 4,1946) but also covered revenues from anything written up to December 31, 1946.


Wife argues that to deny her the requested relief will permit her to enforce the original divorce judgment, including those portions which were modified, according to their original form. That result does not follow. The modification agreement is a contract by which Wife explicitly agreed to limit her rights with respect to the matters dealt with; thus, by the terms of the "new” contract, the modification agreement, Wife is barred from enforcing the original judgment to the extent it was modified (compare, Greschler v Greschler, 51 NY2d 368, 376; Lynn v Lynn, 302 NY 193, 201-203 [discussing the situation where the judgment, but not the surviving <mask>, has been modified]). Wife’s remedy, to proceed on the modified terms as though this were a contract action, may deprive her of certain procedural benefits while also offering Husband fewer defenses to enforcement. The benefits to be obtained by either party were items to be negotiated when the parties entered into the modification agreement. At the insistence of one side, the court will not alter the modification agreement more than seven years after it was signed.


The referee has properly held that the legacy of $25,000 to the three children of the testator constituted a debt of the estate and *123gave the legatees a priority in their status as creditors. The payment of the legacy was required to be made by the testator under a <mask> entered into between him and his wife. In this respect it is similar to the pecuniary provisions required to be given by the testator to Donald Bloomingdale pursuant to a separation agreement in Matter of Bloomingdale (278 N. Y. 435). The character of such a legacy, based upon a valid contract, and the right of the legatee to priority were also considered by the Court of Appeals in Matter of Cameron (278 N. Y. 352, 358)


The <mask> between objectant and decedent provided in part as follows: “ seventh : The husband shall forthwith cause to be prepared and shall duly execute his valid and legal last will and testament, pursuant to the terms of which, upon his death, one-fourth of his net estate shall be devised and bequeathed to the wife. * * * The provisions of the foregoing paragraph may be specifically enforced.”


Examination of the papers further discloses that on October 18, 1968, petitioner previously commenced an action for a declaratory judgment to declare the <mask>, which was incorporated in the Mexican decree of divorce, null and void and for other related relief. The matter was brought to trial before Mr. Justice "VVegmau on January 8,1969, at which time defendant (respondent herein) directed his attack upon plaintiff’s (petitioner herein) complaint seeking dismissal of the causes of action stated therein. On January 14, 1969, the court granted defendant’s motion dismissing certain causes of action in the complaint and the prayers for such relief. However, the court did not dismiss those portions of the complaint pertaining to the custody of the children and injunctive relief enjoining and restraining defendant from removing the children from the custody of the plaintiff. The court treated the complaint as a petition and the summons as an order to show cause and directed the plaintiff to serve an amended pleading on counsel for defendant in the form of a petition on or before January 20, 1969 and gave counsel five days to answer. The plaintiff in compliance with the court’s direction, served the petition upon counsel for defendant.


The case of Dorn v. Dorn (202 Misc. 1057, affd. 282 App. Div. 597 [2d Dept.]) is directly in point. In that case it was conceded that the Mexican divorce was totally invalid. The action was brought to increase payments under the terms of a <mask>. The defendant claimed that the action was based upon a private claim or demand and that the Mexican divorce, despite its invalidity, operated as an estoppel against such *1025action. The lower court held that the plaintiff was estopped from denying the validity of the Mexican divorce, stating at pages 1058, 1059 and 1060: