Chin Kok Ooi v. Wang June Sheena Wang

Full title: CHIN KOK OOI Petitioner, v. WANG JUNE SHEENA WANG, Respondent

Court: Supreme Court, New York County

Date published: Sep 9, 2024

2024 N.Y. Slip Op. 33202 (N.Y. Sup. Ct. 2024)

Opinion

Index No. 160470/2023 Motion Seq. No. 001

09-09-2024

CHIN KOK OOI Petitioner, v. WANG JUNE SHEENA WANG, Respondent

MICHAEL L. KATZ, J.S.C.

Unpublished Opinion

MOTION DATE 10/25/2023 .

PRESENT: HON. MICHAEL L. KATZ, Justice.

DECISION + ORDER ON MOTION

MICHAEL L. KATZ, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

The parties entered into a Separation Agreement on May 12,2010 in an action for divorce, Wang June Sheena Wang v Chin Kok Ooi, Index No. 306821/2010.

Article II ("Equitable Distribution") of the Agreement, which was incorporated but not merged into the Judgement of Divorce entered on October 19, 2010, provides, in relevant part, as follows:

4. Except as specifically set forth in this Agreement, each party shall be fully and solely responsible for his or her respective debts. Notwithstanding any other term or provisions set forth in this Agreement, the parties acknowledge and agree that:

A. In connection with certain debts that were incurred during their marriage, the Husband shall pay to the Wife the sum of $1,500.00 per month, due on the first day of each month, for a period of twenty (20) years, commencing July 1, 2010. The foregoing distributive award paid to the Wife by the Husband pursuant to this Agreement shall be non-taxable transfer, and

B. The Husband shall be responsible for repayment of the debt to Tiffany &Co. for a ring that was purchased on credit during the marriage. The debt is solely in the name of the Wife (last four digits of account: 5614). The current balance of the aforesaid debt to Tiffany &Co. is approximately $15,583.00. The Husband shall be fully and solely responsible for all payments due in a timely fashion. Upon request, he shall provide proof to the Wife of such timely payments. In the event

that Husband defaults in making timely payments to Tiffany &Co., Wife shall be entitled to a money judgment against Husband for the entire balance due

There is no dispute that commencing with a first payment on July 1, 2010, petitioner Chin Kok Ooi, the former husband, made eighty-nine (89) consecutive monthly payments. Petitioner thereafter reduced the amount of his payments and ultimately ceased making any payments.

On or about October 3, 2023, respondent Wang June Sheena Wang moved by order to show cause under the caption of the matrimonial action seeking a money judgment against petitioner for the amount of the outstanding arrears, together with pre-judgment interest, legal fees and costs.

On or about October 26, 2023, petitioner filed the instant Petition seeking to set aside Article II, paragraph 4, subparagraphs A and B of the Agreement.

Petitioner now moves by order to show cause for an order: (i) striking said provisions of the Agreement; and (ii) staying and consolidating the post-judgement enforcement proceedings filed by respondent.

It is well settled that

[g]enerally, separation agreements which are regular on their face are binding on the parties, unless and until they are put aside (citations omitted). Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions. Furthermore, when there has been full disclosure between the parties, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which might vitiate the execution of the agreement, courts should not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident or one-sided.

Christian v Christian, 42 N.Y.3d 63, 71-72 (1977).

However, "courts have thrown their cloak of protection over postnuptial agreements, and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity (citations and internal quotations omitted)." Gardella v Remizov, 144 A.D.3d 977, 979 (2^nd Dep't 2016)

A separation agreement may be set aside if it is the subject of an unconscionable bargain; i.e, an agreement in "which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense (citations omitted)." Morad v Morad, 27 A.D.3d 626,627 (2^nd Dep't 2006). See also, Gardella v Remizov, supra at 979.

A separation agreement may also be set aside "upon a showing of fraud or duress, or where the agreement is manifestly unfair to a spouse because of the other spouse's overreaching (citations omitted)." Kerr v Kerr, 8 A.D.3d 626, 626-627 (2^nd Dep't 2004). "In determining whether a separation agreement is invalid, courts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution. If the execution of the agreement, however, be fair, no further inquiry will be made." Christian v Christian, supra at 73.

Petitioner argues that the provisions of the Agreement which required him to pay the sum of $1,500.00 per month for a period of 20 years and to be solely responsible for repayment of the debt to Tiffany &Co. must be set aside on the grounds that: (a) said provisions are unconscionable because he did not receive any meaningful bargained for benefits in exchange for assuming said debts; (b) said provisions are manifestly unfair and the product of overreaching because defendant essentially received spousal maintenance under the guise of a debt;¹ and (c) he was not represented by counsel in connection with the negotiation, preparation and execution of the Agreement.

1 Petitioner speculates that the court would have likely granted spousal support to respondent in an amount less than $1,500 per month and for a duration of less than 20 years.

Respondent argues in opposition that the written Agreement is valid and enforceable because it was "subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded," as required pursuant to DRL § 236(B)(3), and that petitioner should be estopped from challenging the validity of the Agreement since he complied with and accepted the benefits of the Agreement over a lengthy period of time without raising any objections. See, Hoffer-Adou v Adou, 121 A.D.3d 618, 619 (1^st Dep't 2014); Skotnicki v Skotnicki, 237 A.D.2d 974, 975 (4^th Dep't 1997).

Respondent further argues that there is no basis to petitioner's claims of unconscionability and overreaching since:

(a) the parties specifically acknowledged in the Agreement that they were entering into the Agreement "freely and voluntarily; that they have ascertained and weighed all the facts and circumstances likely to influence their judgment herein; that they have been advised to seek and obtain legal advice independently of each other; that they have been duly apprised of their respective legal rights including those relating to maintenance, child support and the equitable distribution of marital property;" and

(b) the parties further represented in the Agreement that "[a]ll the provisions hereof as well as all questions pertinent hereto have been fully and satisfactorily explained to them. They have given due consideration to such provisions and questions; and they clearly understand and assent to all the provisions hereof;" and

(c) each party specifically stated in the Agreement that "the terms of this Agreement are fair, just and equitable in all respects."

In addition, respondent argues that the terms of the Agreement were not manifestly unfair since, in exchange for petitioner's agreement to repay the debts, respondent waived her right to receive maintenance, as well as her right [prior to the amendment of DRL § 236(B)(5)(d)(7) in 2016] to equitable distribution based on the enhancement of petitioner's earnings during the marriage. See, Hougie v Hougie, 261, A.D.2d 161, 162 (1^st Dep't 1999).²

2 Petitioner, who was unemployed at the beginning of the marriage, was accepted into a 12-month training program with a prestigious oil services company during the marriage. See, Bonnie B. v Michael B., 6 Misc.3d 1004(A), * 13 (Suffolk Co. 2004).

While it is true that petitioner, unlike respondent, was not represented by counsel in connection with the Agreement, petitioner (who holds a graduate degree) specifically acknowledged in the Agreement that he was "aware of his right to be represented by counsel in connection with this Agreement" and "voluntarily elected to proceed without an attorney." See, Skotnicki v Skotnicki, supra at 975, which held that "[a]lthough the fact that defendant was not represented by an attorney is a significant factor to be taken into consideration in determining whether [a] separation agreement was freely and fairly entered into, that fact, without more, does not establish overreaching, especially where [the unrepresented party] is well-educated, with experience in business;" and Gloor v Gloor, 190 A.D.2d 1007, 1008 (4^th Dep't 1993), which held that the fact that a party "was not represented by counsel during the negotiation and execution of the agreement, while relevant to the determination, is not the equivalent of a finding of overreaching (citations omitted), especially where, as here, it is clear that [the party] made a conscious decision not to retain counsel (citation omitted)."

Although the Agreement was favorable to respondent, petitioner has failed to establish that the terms of the Agreement were so unequal as to constitute an unconscionable bargain. See, Skotnicki v Skotnicki, supra at 975. The fact that petitioner may have given "away more than he might legally have been compelled to give does not mean that the separation agreement was the product of overreaching" by respondent. Groper v Groper, 132 A.D.2d 492, 498 (1^st Dep't 1987).

Moreover, petitioner has not pointed out any inequitable conduct relating to the Agreement's execution. See, Colyer v Colyer, 26 A.D.3d 303, 304 (1^st Dep't 2006).

Accordingly, based on the papers submitted and the oral argument held on the record on January 12, 2024, it is hereby,

ORDERED that petitioner's motion is denied; and it is further

ORDERED and ADJUDGED that the Petition is dismissed with prejudice.