Opinion
1920/2014
06-18-2015
NancyAnne F. HUMES, Plaintiff, v. Michael T. HUMES, Defendant.
Plaintiff: Peter Barlet, Esq. Respondent: William Larkin III, Esq.
Plaintiff: Peter Barlet, Esq.
Respondent: William Larkin III, Esq.
Maria S. Vazquez–Doles, J.
The following papers numbered 1–29 were read on Plaintiff's Notice of Motion seeking an Order setting aside the parties' Separation Agreement:
Notice of Motion/Affidavit of NancyAnne F. Humes, dated 1/16/2015/
Affirmation of Peter Barlet, Esq., dated 2/6/2015/ Exhibits A–D 1—7
Defendant's Affidavit in Opposition of Michael T. Humes, 3/9/2015
Affirmation in Opposition of William Larkin, III, Esq., dated 3/9/2015/ Exhibits A–R 8–27
Reply Affirmation Peter Barlet, Esq., dated 3/17/2015 Exhibit E 28–29
Facts:
The parties were married on October 24, 1964. There are two (2) emancipated children born to this marriage. As of May 2014, Plaintiff/Wife was age 69 and in good health and Defendant/Husband was age 72 and in good health. The parties entered into a fully executed and notarized Separation Agreement on August 24, 2011. Both parties initialed each page and signed the last page of the Separation Agreement. In addition, both parties executed a sworn and notarized affidavit attesting that each one had read the Agreement in its entirety, understood and assents to the contents, and agreed that it contained all of the terms of their Agreement. Each party attested that they voluntarily entered into the Agreement with the advice of counsel, that the Agreement was not the result of fraud, duress, or undue influence. Each party attested that they made full disclosure of all assets and that each party knows the nature, extent and value of the other party's property.
The Separation Agreement is a full and complete recitation of the terms of the parties' Agreement, consisting of 28 pages. It provides for the disposition of the parties' personal property, responsibility for debts, and the release and discharge of any rights under any will. The Agreement further provides for the disposition Defendant's business, the parties' bank accounts, and investment accounts. It sets out comprehensive terms for equitable distribution, bank, accounts, individual retirement accounts, and real estate. It provides for Plaintiff to receive one half of Defendant's accounting practice for equitable distribution, upon its sale; which sale shall not occur until after the sale of the marital residence. The Stipulation contains further provisions regarding taxes.
Plaintiff commenced this action on March 13, 2014 with the filing of a summons and verified complaint. An amended verified complaint was subsequently filed on March 24, 2014 . Plaintiff's complaint sought the following: 1) dissolution of the parties' marriage based upon DRL § 170(7) , irretrievable breakdown of the marriage for at least six (6) months; 2) invalidation of the parties' Separation Agreement; 3) modification of the spousal support and equitable distribution terms contained in the parties' Separation Agreement; and 4) a Court order equitably distributing any martial property not otherwise distributed by the parties Separation Agreement. This Court has no record that either a verified answer and/or counterclaim or a verified reply was ever filed with the County Clerk.
The only complaint provided to this Court is the amended complaint.
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Plaintiff filed the instant application seeking inter alia an Order setting aside the separation agreement signed in August of 2011. In his opposition, Defendant aptly pointed out that the Plaintiff and Defendant were represented by counsel when this contract was entered into and that both parties initialed each page and attested to its terms before a notary public.
The Law:
"In general, New York has a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, including prenuptial agreements' " Matter of Fizzinoglia , 118 AD3d 994, (2nd Dept. 2014), quoting Matter of Greiff , 92 NY2d 341. The burden of proof is on the party seeking to invalidate the agreement (see e.g. Weinstein v. Weinstein , 36 AD3d 797, (2nd Dept. 2007), quoting Lombardi , 235 AD2d 400, (2nd Dept. 1997)"A party attacking the validity of the agreement has the burden of coming forward with evidence showing fraud, which will not be presumed, and must have as its basis evidence of overreaching—the concealment of facts, misrepresentation or some other form of deception" Stawski v. Stawski , 43 AD3d 776, (1st Dept. 2007) citing Matter of Sunshine , 51 AD2d 326, (1st Dept. 1976)
Here, the Plaintiff's allegations that the Separation Agreement is unfair, unconscionable, and the product of overreaching are not substantiated by proof sufficient to justify setting aside the Agreement (see, Christian v. Christian , 42 NY2d 63, [Ct. of Appeals] ). In any event, the Plaintiff ratified the Separation Agreement by complying with its provisions and failing to object to it for almost three (3) years (see, Skotnicki v. Skotnicki, 237 AD2d 974 [4th Dept.] ).
Further, Plaintiff had sufficient opportunity to review the terms of the separation agreement, verify its contents, and most importantly has reaped the benefits of the terms of the separation agreement since the execution in August 2011. This Court finds Plaintiff's affidavit lacked evidentiary proof that the agreement was a product of fraud, duress, over reaching or that provisions in the Separation Agreement were unconscionable. Therefore, Defendant's request to set aside the Separation Agreement is denied.
Upon the foregoing papers it is hereby
ORDERED that Plaintiff's motion for an Order setting aside the parties' Separation Agreement dated August 24, 2011 is denied; and it is further
ORDERED that Plaintiff is granted a Judgment of Divorce based upon DRL § 170 (7), and it is further
ORDERED that the parties Separation Agreement executed in August 24, 2011 shall be incorporated but not merged into the parties Judgment of Divorce; and it is further
ORDERED that pursuant to NYCRR § 202.48, Plaintiff's counsel shall submit the final papers of a Judgment of Divorce within 60 days of the date of this Order.
ORDERED that all matters not specifically addressed were considered and are hereby denied; and it is further
The foregoing constitutes the Decision and Order of this Court.