Heuer v. Heuer

Judgment unanimously modified on the law and as modified affirmed, without costs, and matter remitted to Supreme Court, Livingston County, for further proceedings, in accordance with the following memorandum: During this divorce proceeding, the parties entered into a written stipulation that the value of plaintiff’s interest in defendant’s dental practice was $29,750. For the first time on this appeal, plaintiff questions the validity of the stipulation because it was unfair and because neither the stipulation nor the final judgment included a valuation of defendant’s dental license (see, O’Brien v O’Brien, 66 NY2d 576, which was decided after the stipulation, but before a granting of the judgment). No motion to reopen proof was made. Since the record fails to reveal any basis for setting aside the stipulation, it remains unimpeached (see, Christian v Christian, 42 NY2d 63, 71; Preston v Preston,, 107 AD2d 799), and plaintiff’s claims pertaining to the validity of the stipulation are not presently reviewable (see, Gibbons v City of Troy, 91 AD2d 707, 708; Matter of Van Wormer v Leversee, 87 AD2d 942). We also observe that there is no factual basis in the record to support the award of child support and the trial court failed to set forth the factors it considered and the reasons for its decision as to child support and the distribution of a Keogh plan and individual retirement account (see, Domestic Relations Law § 236 [B] [5] [g]; [7] [b]). Therefore, we remit this matter to Supreme Court for additional proof as to child support and for the court’s elaboration of the factors it considered and the reasons for its decision as to child support and the distribution of a Keogh plan and individual retirement account (Patrizio v Patrizio, 96 AD2d 1149; Nielsen v Nielsen, 91 AD2d 1016). We have reviewed the remaining contentions of the parties and find them to lack merit. (Appeals from judgment of Supreme Court, Livingston County, Houston, J.— 962 divorce.) Present—Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.