| Schultz v Schultz |
| 2009 NY Slip Op 00199 [58 AD3d 616] |
| January 13, 2009 |
| Appellate Division, Second Department |
| Pietra Schultz, Respondent, v Lloyd Schultz,Appellant. |
—[*1] Wand, Powers, Lipner, LLP, Huntington, N.Y. (Chad M. Powers of counsel), forrespondent.
In an action, inter alia, for a divorce and ancillary relief, the defendant appeals from an orderof the Supreme Court, Suffolk County (Blydenburgh, J.), dated March 15, 2007, which deniedhis motion for summary judgment on his second affirmative defense seeking a declaration thatthe parties' postnuptial agreement is unconscionable and unenforceable, granted the plaintiff'scross motion for summary judgment declaring the postnuptial agreement valid, and granted thatbranch of the plaintiff's motion which was for an award of an attorney's fee to the extent ofawarding her an attorney's fee in the sum of $1,500.
Ordered that the order is affirmed, with costs.
An agreement between spouses which is fair on its face will be enforced according to itsterms unless there is proof of fraud, duress, overreaching, or unconscionability (see Christianv Christian, 42 NY2d 63, 73 [1977]; Cosh v Cosh, 45 AD3d 798, 799 [2007]; Brennan-Duffy v Duffy, 22 AD3d699 [2005]). "An unconscionable bargain is one which no person in his or her senses andnot under delusion would make on the one hand, and no honest and fair person would accept onthe other, the inequality being so strong and manifest as to shock the conscience and confoundthe judgment of any person of common sense" (Morad v Morad, 27 AD3d 626, 627 [2006]; see Christian vChristian, 42 NY2d at 71; Cosh v Cosh, 45 AD3d at 799). However, an agreement isnot unconscionable "merely because, in retrospect, some of its provisions were improvident orone-sided" (O'Lear v O'Lear, 235 AD2d 466, 466 [1997]; see Brennan-Duffy v Duffy, 22 AD3d699, 700 [2005]), and simply alleging an unequal division of assets is not sufficient toestablish unconscionability (see Cosh v Cosh, 45 AD3d at 799; Morand v Morand, 2 AD3d 913,915 [2003]).[*2]
The record demonstrates that the defendant wasrepresented by independent counsel during negotiations involving the parties' postnuptialagreement, that he signed the agreement, and that his counsel notarized it. Moreover, theagreement itself recites that the defendant entered into it "freely, voluntarily and with fullknowledge of its consequences." Although the defendant received less than one half of the valueof the marital assets because the agreement permitted the plaintiff to retain the marital residence,he was provided with meaningful bargained-for benefits, including the plaintiff's waiver of aviable lifetime maintenance claim (see Cosh v Cosh, 45 AD3d at 799; Morad v Morad, 27 AD3d 626,627 [2006]; Gaton v Gaton, 170 AD2d 576 [1991]). Accordingly, the Supreme Courtproperly denied the defendant's motion for summary judgment on his second affirmative defenseseeking a declaration that the postnuptial agreement is unconscionable and unenforceable, andproperly granted the plaintiff's cross motion for summary judgment declaring the agreementvalid.
The court also properly exercised its discretion in granting that branch of the plaintiff'smotion which was for an award of an attorney's fee to the extent of awarding her an attorney'sfee in the sum of $1,500 (see Domestic Relations Law § 237 [a]; Ciociano v Ciociano, 54 AD3d797 [2008]; Levine v Levine,24 AD3d 625, 626 [2005]). While the plaintiff received a greater share of the parties'marital assets, she has no independent income and does not receive maintenance. Moreover, theplaintiff's motion was prompted by his failure to comply with an earlier court order.
The defendant's remaining contentions are without merit. Mastro, J.P., Florio, Eng andChambers, JJ., concur.