| Cheruvu v Cheruvu |
| 2009 NY Slip Op 01373 [59 AD3d 876] |
| February 26, 2009 |
| Appellate Division, Third Department |
| Christina M. Cheruvu, Respondent, v Sasi K. Cheruvu,Appellant. |
—[*1] Friedman & Molinsek, P.C., Delmar (Michael P. Friedman of counsel), for respondent. Dale Dorner, Law Guardian, Greenville.
Stein, J. Appeals (1) from that part of an order of the Supreme Court (McNamara, J.),entered December 14, 2007 in Albany County, which denied defendant's motion to vacate astipulation of settlement, and (2) from a judgment of said court, entered December 14, 2007 inAlbany County, granting, among other things, defendant a divorce, upon a decision of the court.
Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1997and are the parents of two children, born in 1999 and 2000. In January 2006, the wifecommenced an action for divorce and a trial was scheduled to commence on March 28, 2007. Onthat date, the parties entered into an oral stipulation on the record in open court resolving allissues including, among other things, equitable distribution of marital property, custody, childsupport and maintenance. In addition, the parties signed and acknowledged a written affidavit ofappearance and adoption of oral stipulation and opt-out agreement, and the husband executed anaffidavit acknowledging his understanding of and voluntary agreement to the terms of thesettlement placed on the record and his satisfaction with the representation provided by hisattorneys. The husband subsequently moved to vacate, set aside or modify the stipulation.Supreme Court denied the husband's motion and the stipulation was incorporated, but notmerged, into a judgment of divorce. The husband now appeals from the order denying his motionto vacate the stipulation of settlement and the judgment of divorce.[*2]
Initially, we reject the husband's contention that thestipulation of settlement fails to comply with the requirements of Domestic Relations Law§ 236 (B) (3). This Court has previously held that the procedure employed here—recitation of an oral stipulation into the record, followed by execution of a written opt-outagreement that stated that the parties adopted the terms of the stipulation "as if the same werefully set forth" therein—satisfies the requirements of the Domestic Relations Law (seeZindulka v Zindulka, 284 AD2d 631, 631 [2001], lv dismissed 96 NY2d 938 [2001];Dwyer v De La Torre, 252 AD2d 695, 695-696 [1998]; Vermilyea v Vermilyea,224 AD2d 759, 760 [1996]; cf. Lischynsky v Lischynsky, 95 AD2d 111, 113 [1983]).
Turning next to the husband's argument that the stipulation as a whole is unenforceable, wenote that "[a] stipulation of settlement which is made in open court by parties who arerepresented by counsel and who unequivocally agree to its terms will not be set aside absent ashowing that the stipulation was tainted by mistake, fraud, duress, overreaching orunconscionability" (Fox v Merriman, 307 AD2d 685, 686 [2003]). In addition to the factthat both parties were represented by competent counsel, the record indicates that the husbandwas fully aware of the assets to be distributed, the parties' financial circumstances and theavailable proof with respect thereto, and that the terms of the agreement had been negotiatedover a substantial period of time. The stipulation, the contemporaneously executed opt-outagreement and the husband's affidavit all express that he understood and was satisfied with theterms of the settlement. In response to Supreme Court's inquiry, the husband unequivocallystated that he had not been coerced into entering into the agreement and he had enough time toget the information necessary to make decisions relative to the agreement. Also, when given theopportunity to correct or clarify the stipulation, the husband's attorney did so before the husbandsigned the relevant documents. Under these circumstances, the husband's allegations areinsufficient to warrant setting aside the agreement on the basis of mistake, fraud, duress oroverreaching (see Curtis v Curtis,20 AD3d 653, 655 [2005]).
Moreover, in order to set aside a settlement agreement between spouses on the ground ofunconscionability, the court must find that it is one that "no [person] in his [or her] senses andnot under delusion would make on the one hand, and [that] no honest and fair [person] wouldaccept on the other" (Christian v Christian, 42 NY2d 63, 71 [1977] [internal quotationmarks and citation omitted]; see Curtis v Curtis, 20 AD3d at 656); the inequity being soapparent as to "shock the conscience" (Tremont v Tremont, 35 AD3d 1046, 1048 [2006]; see Christianv Christian, 42 NY2d at 71-72; Lounsbury v Lounsbury, 300 AD2d 812, 814[2002]). An agreement will not be set aside simply because it entitles a spouse to more than thelaw would have provided (see Lounsbury v Lounsbury, 300 AD2d at 814) or because itconstitutes a bad bargain (see Broer vHellermann, 2 AD3d 1247, 1248 [2003]).
While the agreement here appears to contain generous provisions for the wife and children, itis certainly not manifestly unfair. Even assuming, as the husband argues, that Supreme Courtshould have rejected the opinion of the wife's expert as to the value of the husband's medicalpractice in favor of the lower value ascribed to that asset by the business administrator of thepractice and that the court erred in making other calculations as asserted by the husband, itappears on this record that the husband received a reasonable share of the marital assets.Likewise, although the custody arrangement was slightly more favorable to the wife than it hadbeen under the temporary order in place during the pendency of the action, the children are withthe husband six out of every 14 days when school is in session and half the time when it is not,an arrangement that can hardly be considered unconscionable.[*3]
Finally, with regard to maintenance and child support, wenote that the husband's annual earnings were more than $460,000 (after deductions for SocialSecurity and Medicare), while the wife earned less than $20,000 annually. Under thesecircumstances, we do not view the husband's tax-deductible maintenance obligation of $4,000per month for a period of four years to be excessive. Nor do we find the husband's obligations forthe support and education of the parties' children to be shocking. In fact, even the husbandacknowledges that his support obligations for the wife and two children amounted to onlyslightly more than half of his after-tax income.
However, we find that the child support provisions of the parties' stipulation are invalid andunenforceable inasmuch as they fail to state the reason or reasons that the amount to which theparties stipulated deviates from the presumptively correct amount of child support pursuant tothe Child Support Standards Act (see Domestic Relations Law § 240 [1-b] [h]; Matter of Usenza v Swift, 52 AD3d876, 878 [2008]; Fessenden v Fessenden, 307 AD2d 444, 445 [2003]; Matter ofSievers v Estelle, 211 AD2d 173, 175-176 [1995]). Although the stipulation sets forth theparties' respective incomes and recites that the basic child support obligation would be 25% ofthe first $80,000 of the combined parental income, it then calculates the presumptively correctamount based upon the total parental income and fails to deduct from the husband's income hismaintenance payments to the wife (see Domestic Relations Law § 240 [1-b] [b][5] [vii] [C]). While we have held that "where . . . each and every other statutoryrequirement is met, yet the basic child support obligation from which the deviation is sought isstated but miscalculated, that alone may not be enough to invalidate the agreement" (Sullivan v Sullivan, 46 AD3d1195, 1197 [2007]), since the stipulation here fails to set forth the reason for the deviation,the child support issue must be considered de novo (see Matter of Usenza v Swift, 52AD3d at 878-879; Matter of Sievers v Estelle, 211 AD2d at 176). Accordingly, thematter must be remitted to Supreme Court to address this issue.
We have considered the husband's remaining contentions and find them to be unavailing.
Mercure, J.P., Peters, Kane and Malone Jr., JJ., concur. Ordered that the order and judgmentare modified, on the law, without costs, by reversing so much thereof as denied defendant'smotion to vacate the stipulation of settlement as it relates to the child support award; motiongranted to that extent, said child support award vacated and matter remitted to the SupremeCourt for further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.