                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     519376
________________________________

CATHERINE M. McKELVEY,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JEFFREY S. McKELVEY,
                    Appellant.
________________________________


Calendar Date:   February 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


      Blatchly & Simonson, PC, New Paltz (Bruce D. Blatchly of
counsel), for appellant.

      Rusk Wadlin Heppner & Martuscello, LLP, Kingston (Jason J.
Kovacs of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Work, J.),
entered January 9, 2014 in Ulster County, which denied
defendant's motion to modify and/or partially vacate certain
support provisions of a prior judgment.

      Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were married in 1980. In October 2009, when the
wife commenced this action for a divorce, the parties had one
unemancipated child. In November 2009, a Support Magistrate
issued an order directing the husband to pay child support in the
amount of $1,213 per month and nondurational spousal support in
the amount of $2,787 per month. In June 2010, after the husband
defaulted, Supreme Court held an inquest and, thereafter, issued
findings of fact and conclusions of law and granted the wife a
                               -2-                519376

judgment of divorce. By the terms of the judgment, it is
apparent that the parties appeared at the inquest and "agreed on
financial issues." Relevant here, the judgment also reflects
that the parties agreed to incorporate the Support Magistrate's
November 2009 order with regard to spousal and child support into
the judgment. In September 2013, the father moved for an order
to modify "and/or partially vacat[e]" the spousal support
provision of the judgment. Supreme Court denied the motion
without a hearing and this appeal ensued.

      We find that Supreme Court properly declined to modify the
judgment of divorce. Initially, we note that the husband does
not explain why he waited more than three years to seek relief
from the judgment (see Sieger v Sieger, 51 AD3d 1004, 1006
[2008], appeal dismissed 14 NY3d 750 [2010], lv denied 14 NY3d
711 [2010]; Weimer v Weimer, 281 AD2d 989, 989 [2001]).
Generally, a stipulation of settlement made in open court will
not be set aside "absent a showing that the stipulation was
tainted by mistake, fraud, duress, overreaching or
unconscionability" (Fox v Merriman, 307 AD2d 685, 686 [2003]; see
Barzin v Barzin, 158 AD2d 769, 770 [1990], lv dismissed 77 NY2d
834 [1991]). Although the husband chose to attend the inquest
without legal counsel, that alone does not require us to set
aside the agreement (see Liquori v Liquori, 106 AD3d 1249, 1250-
1251 [2013]; Korngold v Korngold, 26 AD3d 358, 359 [2006], lv
dismissed 7 NY3d 861 [2006]). Here, because the record does not
include a copy of the transcript of the agreement made in open
court and the husband's affidavit does not indicate why the
agreement was unfair or unconscionable at the time it was made,
we have no basis to question its validity (see Etzel v Etzel, 22
AD3d 906, 908 [2005]).1 We can conclude, however, that by duly
executing an affidavit of appearance and adoption of oral
stipulation on the day of the inquest, which affidavit states
that the parties were adopting their oral stipulation "as if the
same were fully set forth herein," the parties complied with
Domestic Relations Law § 236 (B) (3) (see Birr v Birr, 70 AD3d
1221, 1223 [2010]; Cheruvu v Cheruvu, 59 AD3d 876, 877 [2009]).


     1
        At oral argument, counsel for both parties acknowledged
that no attempt was made to obtain the transcript.
                                 -3-                519376

      To the extent that the husband sought to modify the spousal
support provision of the agreement that was incorporated into the
judgment,2 we conclude that Supreme Court should not have denied
his request without a hearing. Generally, a party is entitled to
a hearing upon such a request if he or she is able to show prima
facie evidence of "extreme hardship" (Matter of Cranston v
Horton, 99 AD3d 1090, 1091 [2012]; see Morrissey v Morrissey, 61
AD3d 1089, 1090-1091 [2009]). Here, the husband presented tax
returns for years 2008 through 2011. It is not disputed that the
husband was the former owner of a successful corporation and
that, due to his default, his support obligation was based on the
wife's statement of net worth and the parties' 2008 tax returns.
That year, the parties' reported income in the amount of $92,647
and the corporation reported profit in the amount of $548,357.
The husband claims that, at some point, the corporation
"collapsed" and its property was sold in foreclosure. In 2012,
the husband reported income in the amount of $24,800 and, in
2013, he was earning $800 per week working for the company that
purchased "the shell" of his former corporation. We are mindful
that the husband did not submit comprehensive proof to Supreme
Court and he did not provide any detail with regard to his
monthly expenses (see e.g. Matter of Cranston v Horton, 99 AD3d
at 1091; Morrissey v Morrissey, 61 AD3d at 1091). In our view,
however, the undisputed proof indicating that the husband earns,
after taxes, less than his monthly support obligation was
sufficient to demonstrate prima facie evidence of extreme
hardship, and Supreme Court should have held a hearing on his
request to modify his support obligation (compare Matter of
Talandis v Talandis, 233 AD2d 689, 689-690 [1996]).

         Lahtinen, J.P., Garry and Devine, JJ., concur.




     2
        As the parties' daughter has turned 21, child support is
no longer at issue.
                              -4-                  519376

      ORDERED that the order is reversed, on the law and the
facts, without costs, and matter remitted to the Supreme Court
for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
