Oral Stipulations and Pro Se Litigants

Fulginiti v Fulginiti,

___ AD3d ___, 2015 NY Slip Op 03017 [3rd Dept., 2015]

When spreading an oral stipulation on the record, it is important to specify all of the elements, especially when the adversary is pro se. That seems obvious, but the failure to lock down the details proved costly here.

Plaintiff wife and defendant husband claimed and counterclaimed for divorce on grounds of cruel and inhuman treatment. At an appearance before the court, the husband was pro se, and a stipulation was spread upon the record. Although the husband would later attempt to disavow the stipulation in its entirety, there was no getting around the fact that the parties were in court, before the judge and on the record, which is all that CPLR 2104 means when it allows oral stipulations “in open court.”

The real issue was whether or not the husband withdrew his answer in that stipulation. Counsel for the wife thought he did, and so did the court. The court proceeded to trial on the issues of maintenance and equitable distribution. The husband had counsel at trial, and maintained that the answer had not been withdrawn. The court’s decision after trial granted the wife the divorce, ordered maintenance and equitable distribution, and referred custody and support issues to the Family Court. The husband moved for reargument, claiming that the stipulation had not withdrawn the answer. Supreme Court granted reargument, but adhered to its determination. Judgment was entered accordingly.

On appeal from the judgment and the order, the Appellate Division looked at the terms of the oral stipulation, and saw nothing that explicitly withdrew the husband’s answer. The wife’s attorney commented, at some point during the proceedings, that the husband had agreed to do so, and the husband said nothing in response. Silence under these circumstances, especially by an unrepresented party, cannot be construed as misleading to the adversary or the court, and does not accepts the adversary’s interpretation of the agreement. The husband, once represented, consistently disputed that the answer had been withdrawn.

The stipulation was therefore held to be ambiguous on this critical point. There had in fact been no determination on the merits as to whether either party was entitled to a divorce. The matter was remitted for a new trial.