Lobatto v. Lobatto

— Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about November 15, 1991, which, inter alia, awarded plaintiff $2,000 per month in temporary maintenance and directed defendant to pay rent on the marital residence and to pay other expenses and counsel fees, is unanimously modified, on the law and the facts, to the extent that all payments except for $2,000 per month are vacated, and otherwise affirmed, without costs. This is an action for divorce. At the time of these proceedings plaintiff was 59 years of age and defendant was 78 years of age. The parties were married in 1987 and the marriage lasted four years. Prior to entering the marriage, the parties entered into an antenuptial agreement, dated March 4, 1987, which, at Paragraph 9 (b), provided that in the event of marital discord, the husband "shall establish an inter vivos trust fund in the sum of $250,000, to pay to the Prospective Wife during her lifetime or until her earlier remarriage the 40 sum of $2,000 monthly from the income or principal of the trust.” Paragraph 9 (a) further stated that the parties "waive[d] and release[d] any right to support, maintenance, or any other payment of a similar nature, whether temporary or permanent, from the other in any action or proceeding or otherwise between the parties”. Paragraph 16 stated that the agreement was the entire understanding of the parties. The 1987 agreement is controlling until or unless it is set aside (Demis v Demis, 155 AD2d 790 [1989]). The motion court erred to the extent that it went beyond that agreement in providing for temporary support. Concur—Milonas, J. P., Wallach, Kupferman and Smith, JJ.