| Smith v Walsh-Smith |
| 2009 NY Slip Op 07467 [66 AD3d 534] |
| October 20, 2009 |
| Appellate Division, First Department |
| Philip J. Smith, Respondent, v Tricia Walsh-Smith,Appellant. |
—[*1] Sheresky Aronson Mayefsky & Sloan, LLP, New York (David Aronson of counsel), forrespondent.
Judgment, Supreme Court, New York County (Harold B. Beeler, J.), entered August 7, 2008,after a nonjury trial, dissolving the parties' marriage on the ground of cruel and inhumantreatment, declaring their prenuptial agreement valid and enforceable and incorporating its terms,and bringing up for review an order, same court and Justice, entered August 6, 2008,unanimously affirmed, without costs. Appeal from the aforesaid order unanimously dismissed,without costs, as subsumed in the appeal from the judgment.
We reject defendant's contention that the prenuptial agreement is unconscionable. Given theclearly articulated waivers of rights upon divorce and the provision that defendant would receivea tax-free payment of $750,000 in the event of divorce more than 5 but less than 10 years afterthe marriage, we cannot say that the agreement is so unfair "as to shock the conscience andconfound the judgment of any [person] of common sense" (Christian v Christian, 42NY2d 63, 71 [1977] [internal quotation marks and citation omitted]; see Darrin v Darrin, 40 AD3d1391 [2007], lv dismissed 9 NY3d 914 [2007]).
Nor did defendant raise any triable issues of fact with respect to fraud, duress oroverreaching in connection with the execution of the prenuptial agreement. That plaintiff failedto include his income in his financial disclosure is not by itself sufficient to vitiate the agreement(Strong v Dubin, 48 AD3d232, 233 [2008]). The substantial financial disparity between the parties was fully disclosedat the time the agreement was executed, and there is no evidence that plaintiff used his wealth asleverage to coerce defendant to sign the agreement. The record does not support defendant'scontention that she did not have sufficient time to review the agreement, which the parties signedthree weeks before the wedding, or her contention that she did not understand the terms of theagreement, which was written in English, her native tongue. Moreover, defendant wasrepresented by counsel, and, contrary to her contention, the fact that plaintiff paid for defendant'sattorney does not by itself raise a triable issue of fact as to duress or overreaching.[*2]
The acknowledgment in the prenuptial agreementsubstantially complied with Real Property Law § 309-a (see Weinstein v Weinstein, 36 AD3d797 [2007]).
Defendant failed to preserve her argument that a more stringent standard for cruel andinhuman treatment should be applied to acts that occur after the commencement of divorceproceedings (citing Anderson v Anderson, 58 AD2d 679 [3d Dept 1977]). However,were we to evaluate the evidence of defendant's postcommencement actions according to ahigher level of proof, we would find that defendant's use of various media to discuss the parties'marital troubles and publicly humiliate plaintiff, coupled with the evidence that, as a result ofdefendant's conduct, plaintiff left the marital home and sought medical treatment, is sufficient tosupport the trial court's determination that defendant's postcommencement acts constituted crueland inhuman treatment (see e.g. Stoothoff v Stoothoff, 226 AD2d 209 [1996]; Xiaokang Xu v Xiaoling Shirley He,24 AD3d 862, 863-864 [2005], lv denied 6 NY3d 710 [2006]).
Defendant's application for additional time to amend her answer, including counterclaimsand affirmative defenses, was unaccompanied by a proposed amended pleading or an affidavit ofmerits (see Estate of Brown v PullmanGroup, 60 AD3d 481, 482 [2009], lv dismissed in part and denied in part 13NY3d 789 [2009]). Moreover, it was made after two days of trial on fault and the day beforeargument on plaintiff's motion for summary judgment.
We have considered defendant's remaining arguments and find them unavailing.Concur—Tom, J.P., Buckley, Catterson, Freedman and Abdus-Salaam, JJ.