| Garner v Garner |
| 2007 NY Slip Op 10420 [46 AD3d 1239] |
| December 27, 2007 |
| Appellate Division, Third Department |
| Giovanna B. Garner, Respondent, v Andrew W. Garner,Appellant. |
—[*1] John R. Winn, Granville, for respondent.
Carpinello, J. Appeal from a judgment of the Supreme Court (Breen, J.), entered October 14,2005 in Warren County, ordering, among other things, equitable distribution of the parties'marital property, upon a decision of the court.
In November 1998, after 13 years of marriage which produced four children, defendantdisclosed to plaintiff that he was addicted to certain drugs and that he had had an extramaritalaffair earlier in their marriage. At this time, the parties agreed to stay married, but also enteredinto a postnuptial agreement in the event they eventually divorced. In such an eventuality, theagreement contained provisions detailing the division of separate and marital assets, as well asdefendant's child support and maintenance obligations. It further provided that defendant wouldmaintain existing life insurance for the benefit of plaintiff and the children.
Five years later, after defendant's disclosure of another extramarital affair, plaintiffcommenced this action for divorce and to enforce the postnuptial agreement. In the context ofthis action, defendant sought an order declaring the postnuptial agreement null and void which,following a hearing, was denied. Ultimately, Supreme Court granted plaintiff a divorce anddefendant now appeals from that judgment.
Defendant's primary argument on appeal centers on the validity of the parties' postnuptialagreement, which he claims was the product of duress and overreaching. Since the record doesnot support defendant's contentions, we affirm the judgment. Indeed, the record [*2]reveals that defendant himself suggested the idea of such anagreement and dictated many of its terms. Plaintiff found a lawyer to draft it by consulting theyellow pages, defendant read the agreement as drafted by this lawyer and indeed madehandwritten changes before signing it (see Tremont v Tremont, 35 AD3d 1046, 1047-1048 [2006]).Moreover, although advised to seek independent counsel, he declined to do so (see id.;Croote-Fluno v Fluno, 289 AD2d 669, 671 [2001]; Buffett v Buffett, 166 AD2d819, 820 [1990]). Thereafter, in furtherance of its terms, he deeded the marital residence toplaintiff, changed ownership on the life insurance and never sought relief from it until plaintiffsued him for divorce five years later (see McLean v Balkoski, 125 AD2d 234, 235-236[1986]; Stoerchle v Stoerchle, 101 AD2d 831, 832 [1984]).
While defendant claims that he was under duress when he signed the agreement because hefeared losing his marriage and children, we note that the threat of a divorce action by plaintiff,which was her lawful right to commence, does not constitute duress (see Lounsbury vLounsbury, 300 AD2d 812, 815 [2002]; Lyons v Lyons, 289 AD2d 902, 904 [2001],lv denied 98 NY2d 601 [2002]; see also Colello v Colello, 9 AD3d 855, 858 [2004]). To the extentthat defendant also claims that drug withdrawal symptoms at the time he entered into theagreement "compromised" his state of mind, notably absent from the record is any medical proofto support this allegation (see Lyons v Lyons, supra; Giustiniani v Giustiniani,278 AD2d 609, 611 [2000], lv denied 96 NY2d 706 [2001]). On this point, we find itparticularly significant that defendant made amendments to the agreement before he signed it(see Lounsbury v Lounsbury, supra). As to defendant's claim that he lacked independentcounsel, we note that the agreement itself encouraged him to seek the assistance of counsel, buthe opted not to do so. Moreover, in the absence of any evidence of duress, overreaching orunconscionability, this factor is an insufficient ground upon which to void the agreement (see Rodriguez v Rodriguez, 11 AD3d768, 770 [2004]; Lounsbury v Lounsbury, supra; Croote-Fluno v Fluno,supra).
Finally, we are unpersuaded that the agreement is unconscionable. As recently noted by thisCourt, "[a]lthough courts carefully scrutinize marital agreements based on the fiduciaryrelationship of the parties, an agreement is not unconscionable merely because some terms mayseem improvident; it must shock the conscience to be set aside" (Tremont v Tremont, 35AD3d at 1048; see Lounsbury v Lounsbury, 300 AD2d at 814; Croote-Fluno v Fluno,supra). Here, even the combined amount of child support and maintenance that defendant, aphysician, agreed to pay was less than his presumptive level of child support alone under theChild Support Standards Act (see Domestic Relations Law § 240 [1-b]). Moreover,while he transferred all interest in the marital residence to plaintiff, she has physical custody ofthe children and the residence was encumbered with a sizeable mortgage for which she wasresponsible (see Lounsbury v Lounsbury, supra). Finally, while defendant complainsabout his lifetime obligation to pay life insurance premiums and the potential future cost of same,we note that these policies were not new obligations created under the agreement, but had beenpurchased during the marriage and defendant, with full knowledge of his own financial status,simply agreed to continue to maintain them. Additionally, he failed to offer any proofestablishing the amount of these future premiums or that he would be unable to afford same(see Giustiniani v Giustiniani, supra). In short, the agreement does not shock theconscience and should be enforced.
The parties' remaining contentions are either academic or without merit.
Crew III, J.P., Peters, Spain and Mugglin, JJ., concur. Ordered that the judgment is affirmed,without costs.