Defendant's argument that the complaint should have been dismissed because plaintiff's vague and conclusory allegations of unfairness, undue influence, lack of financial disclosure and overreaching are insufficient as a matter of law, is raised for the first time on appeal, and therefore, that argument is not properly before us (see, MacMaster v Sardina, 182 A.D.2d 1132; Kocher v Baird, 174 A.D.2d 1042). Supreme Court erred, however, in granting plaintiff's cross motion and we therefore modify the order to deny it. Plaintiff failed to establish the requisite "legitimate factual predicate" for the discovery sought and there is no basis to depart from the general rule that financial disclosure is inappropriate unless and until the existing separation agreement is set aside (see, Rupert v Rupert [appeal No. 1], 190 A.D.2d 1027 [decided herewith]; Fakiris v Fakiris, 177 A.D.2d 540, 543; Cruey v Cruey, 159 A.D.2d 241; Gilsten v Gilsten, 137 A.D.2d 411, 413; Oberstein v Oberstein, 93 A.D.2d 374).
Order unanimously reversed on the law with costs and motion denied. Memorandum: Supreme Court erred in granting financial disclosure in the matrimonial action before the invalidity of the antenuptial agreement was established (see, DeSantis v DeSantis, 182 A.D.2d 1107; Cruey v Cruey, 159 A.D.2d 241, 241-242; Hoffman v Hoffman, 100 A.D.2d 704). Unlike the showing made in Gilsten v Gilsten ( 137 A.D.2d 411), here plaintiff failed to show that financial disclosure was necessary to support her cause of action to declare the invalidity of the agreement.
Ordered that the order is modified, on the law, by deleting the provision thereof which directed the plaintiff pay the rent on the marital apartment; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. We agree with the plaintiff husband that the parties' antenuptial agreement is applicable under the circumstances presented, and forecloses the defendant wife from seeking any award of maintenance from the husband, including maintenance pendente lite (see, Panossian v. Panossian, 172 A.D.2d 811; Cruey v. Cruey, 159 A.D.2d 241). The parties broadly and unequivocally renounced all claims against each other "under any circumstances" for support, maintenance, or alimony, in the event, inter alia, of the "breakup" of the marriage by "separation or otherwise". Since the foregoing provision is applicable, the provision of the order requiring the husband to pay the wife's monthly rental expenses must be vacated. Contrary to the wife's contentions, the record fails to support her assertion that she is "incapable of self-support and therefore is likely to become a public charge" in the event the agreement is enforced (see, General Obligations Law § 5-311; cf., Panossian v. Panossian, 172 A.D.2d 811, supra). We disagree with the husband, however, that the court erred when it modified a pre-existing Family Court order by increasing weekly child support to $125 per week, pendente lite.
This appeal followed. The court was correct in determining that the defendant has no right to broad discovery of the plaintiff's current financial circumstances, because his current circumstances have no relevance unless and until the 1967 separation agreement is set aside (see, Wandell v. Wandell, 140 A.D.2d 434; Weinstock v. Weinstock, 122 A.D.2d 790; Potvin v. Potvin, 92 A.D.2d 562; see also, Cruey v. Cruey, 159 A.D.2d 241). Since the agreement was executed prior to the effective date of Domestic Relations Law § 236 (B) (3), the technical defect in the acknowledgment, while enough to remove it as the basis for a conversion divorce (see, Garguilio v. Garguilio, 122 A.D.2d 105, supra), does not otherwise affect its validity, and the agreement continues to govern the economic issues (see, McLean v. Balkoski, 125 A.D.2d 234; Geiser v. Geiser, 115 A.D.2d 373; Cicerale v. Cicerale, 85 Misc.2d 1071, 1075, affd. 54 A.D.2d 921, supra).