Opinion
May 9, 1988
Appeal from the Supreme Court, Nassau County (Levine, J.H.O., Levitt, J.).
Ordered that the appeals from the orders dated March 16, 1987 and March 30, 1987 are dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the appeal from the decision dated October 16, 1986, is dismissed, without costs or disbursements, as no appeal lies from a decision; and it is further,
Ordered that the appeals from the orders entered January 23, 1986, November 25, 1985, and August 2, 1985, and the appeal from the order dated May 6, 1986 are dismissed as abandoned, without costs or disbursements; and it is further,
Ordered that the appeal from the judgment is dismissed, without costs or disbursements, as that judgment was superseded by the resettled judgment; and it is further,
Ordered that the resettled judgment is modified, on the law, by deleting the first, second, third, fourth, fifth, sixth, seventh, eighth, eleventh and twelfth decretal paragraphs thereof, and substituting therefor a provision reinstating the financial provisions of the separation agreement executed March 31, 1982, and the provisions of the judgment of divorce which were based upon those provisions of the separation agreement; as so modified, the resettled judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the judgment is vacated; and it is further,
Ordered that the matter is remitted to the Supreme Court, Nassau County, for a new determination on the issue of counsel fees in accordance herewith, and for recalculation of arrears, if any, in maintenance and child support owed the plaintiff under the terms of the separation agreement and the provisions of the judgment of divorce which were based upon the separation agreement.
The defendant indicates in his brief that he has abandoned his appeals from the orders dismissed herein because those orders are brought up for review by his appeals from the judgment entered March 27, 1987, and the resettled judgment entered March 30, 1987, and if the appeals from those orders had been perfected they would have been dismissed under Matter of Aho ( 39 N.Y.2d 241). "Generally, separation agreements which are regular on their face are binding on the parties, unless and until they are put aside (2 Foster Freed, Law and the Family, p 476; see, also, Schmelzel v Schmelzel, 287 N.Y. 21, 26; 2 Lindey, Separation Agreements and Ante-Nuptial Contracts [rev ed], § 36, subd 1, p 36-3). 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" (Christian v Christian, 42 N.Y.2d 63, 71-72).
However, due to the existence of a fiduciary relationship between husband and wife, separation agreements are closely scrutinized by courts and are more readily set aside under circumstances that would be insufficient to nullify an ordinary contract (Levine v Levine, 56 N.Y.2d 42). At bar the plaintiff alleged, and the court determined, that the separation agreement entered into by the parties was unconscionable and was the result of fraud and overreaching on the part of the defendant. This finding, however, is not supported by the evidence adduced at the hearing. Though $20,000 a year for maintenance and $10,000 a year for child support is not generous in view of the defendant's income at the time the agreement was entered into and the parties' preseparation standard of living, it is clearly not unconscionable in that "no person in his senses and not under delusion would agree to [it] nor [is it] so manifestly unfair as to shock the conscience (Christian v Christian, 42 N.Y.2d 63, 71; Gorman v Gorman, 87 A.D.2d 674, mot to dismiss app granted 56 N.Y.2d 804)" (Wile v Wile, 100 A.D.2d 932, 934). This is particularly so in light of the substantial assets given to the plaintiff, the plaintiff's interest in avoiding liability in connection with an impending tax audit, and the uncontroverted indication that the plaintiff was receiving more than was indicated by the terms of the written agreement. In addition, there was no evidence adduced to support the hearing court's determination that the attorney that represented the plaintiff at the signing of the agreement was there only at the connivance of the defendant in order to legitimize the agreement. In fact, the attorney testified that he was initially contacted by the plaintiff, who told him that her former attorney represented her during the negotiation of the agreement and she needed his assistance only to make sure that the agreement she was signing contained the provisions to which she had previously agreed. In addition, he testified that he discussed the financial aspects of the agreement with the plaintiff, advised her that she was entitled to much more under the Equitable Distribution Law, and questioned the wisdom of entering into the agreement. Since the plaintiff did not testify on her own behalf, the trier of fact is permitted to draw the strongest inference against her that the foregoing evidence permits (see, Matter of Commissioner of Social Servs. v Philip De G., 59 N.Y.2d 137; Association of Bar v Randel, 158 N.Y. 216). In any event, overreaching is not proven simply by the fact that the party seeking to set aside the agreement was not represented by independent counsel (Levine v Levine, 56 N.Y.2d 42, supra; Tuck v Tuck, 129 A.D.2d 792; Surlak v Surlak, 95 A.D.2d 371, appeal dismissed 61 N.Y.2d 906).
The evidence adduced at the hearing did establish that the financial statement submitted by the defendant at the time the separation agreement was executed did not accurately reflect his financial circumstances. However, the plaintiff failed to establish that she relied upon this alleged misrepresentation in entering into the separation agreement. Furthermore, the plaintiff was improperly permitted to assert the attorney-client privilege when the attorney who represented her at the signing of the agreement was questioned as to whether she indicated that she was aware of the defendant's actual financial situation and her reasons for entering into the agreement. That privilege was waived with respect to those communications when the plaintiff placed the subject matter of the communications in issue and because invasion of the privilege was required to determine the validity of the plaintiff's claim and application of the privilege would deprive the defendant of vital information (see, Village Bd. v Rattner, 130 A.D.2d 654; Jakobleff v Cerrato, Sweeney Cohn, 97 A.D.2d 834). Here, too, the trier of fact is permitted to draw the strongest inference against the plaintiff that the opposing evidence will permit (see, Matter of Commissioner of Social Servs. v Philip De G., 59 N.Y.2d 137, supra).
Finally, there is absolutely no evidence to support the hearing court's determination that the plaintiff signed the separation agreement "while she was in an emotional state which precluded her comprehension of her rights".
In sum, the plaintiff failed to establish that the separation agreement was unconscionable and was the result of fraud and overreaching on the part of the defendant. Thus the court erred in setting the separation agreement aside. However, the plaintiff is entitled to any arrears in maintenance and child support due her under the separation agreement and judgment of divorce entered thereon and the matter is hereby remitted for a calculation of the same.
Since the parties agree that the issue of whether the court properly permitted the plaintiff to move to Florida with the parties' children, in violation of the "50-mile radius" provision of the separation agreement, is academic because the plaintiff has since returned to the New York City area, we decline to review that issue. Consequently, the propriety of the visitation provisions which were arrived at based upon the assumption that the plaintiff would be residing in Florida are also not properly before us. Essentially, the defendant's challenge with respect to the visitation provisions of the resettled judgment is based upon a change in circumstances, and should be raised by way of motion in the Supreme Court, Nassau County.
Finally we note that the Judicial Hearing Officer awarded the plaintiff's counsel $101,137.64 in counsel fees and expenses incurred during the course of the equitable distribution hearing. In light of the change in the parties' financial circumstances as a result of our decision, and in light of our determination that the plaintiff should not have prevailed on her application to set aside the separation agreement, we hereby remit this matter to the Supreme Court, Nassau County, for a new determination as to the amount, if any, of counsel fees to which the plaintiff is entitled (see, Domestic Relations Law § 237; see also, Borakove v Borakove, 116 A.D.2d 683; Apkarian v Apkarian, 39 A.D.2d 609). Thompson, J.P., Kunzeman, Rubin and Harwood, JJ., concur.