| Santini v Robinson |
| 2009 NY Slip Op 09017 [68 AD3d 745] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Joseph G. Santini, Respondent, v Donna L. Robinson,Appellant. |
—[*1] John P. DiMascio & Associates, LLP, Garden City, N.Y. (Jeffrey S. Chang of counsel), forrespondent.
Motion by the former attorney for the respondent to clarify a decision and order of this Courtdated December 23, 2008, which determined an appeal from a judgment of the Supreme Court,Nassau County, entered March 29, 2007. Separate motion by the respondent pro se for leave toreargue the appeal. Application by the respondent pro se to dismiss the motion to clarify filed byhis former attorney.
Upon the papers filed in support of the motions and the application and the papers filed inopposition thereto, it is
Ordered that the application is granted and the motion by the former attorney for therespondent to clarify the decision and order of this Court dated December 23, 2008 is dismissed;and it is further,
Ordered that the motion for leave to reargue is granted to the extent that the decision andorder of this Court dated December 23, 2008 (Santini v Robinson, 57 AD3d 877 [2008]) is recalled and vacated,and the following decision and order is substituted therefor, and the motion for leave to reargueis otherwise denied:
In an action to set aside the financial provisions of the parties' stipulation of settlement datedJanuary 9, 1992, which was incorporated but not merged into a judgment of divorce, thedefendant appeals from a judgment of the Supreme Court, Nassau County (Spinola, J.), enteredMarch 29, 2007, which, inter alia, after a nonjury trial, set aside the provisions of the stipulationof settlement (1) awarding her 100% of the plaintiff's deferred compensation benefits, (2)directing the plaintiff to pay her interest at an annual rate of 9% on a $19,000 promissory note,(3) awarding her 100% of the parties' individual retirement accounts, (4) awarding her exclusivepossession of the marital home, (5) directing the plaintiff to pay 100% of the college expensesfor the parties' three children, and (6) directing the plaintiff to pay her lifetime maintenance.
Ordered that the judgment is modified, on the law, (1) by deleting (a) the second decretalparagraph thereof setting aside the entire stipulation of settlement dated January 9, 1992, (b) thethird decretal paragraph thereof setting aside articles 3 and 4 of the stipulation and thepromissory notes [*2]executed by the plaintiff in conjunctiontherewith, (c) the fourth decretal paragraph thereof directing the defendant to disgorge one halfof the plaintiff's deferred compensation benefits, (d) the sixth decretal paragraph thereofawarding the plaintiff the sum of $6,402.21 from the plaintiff's IRA accounts, (e) the seventhdecretal paragraph thereof awarding the plaintiff a sum equal to one half of the equity in themarital residence minus the sum of $24,000, (f) the eighth decretal paragraph thereof settingaside article 6, paragraph C of the stipulation relating to college expenses, (g) the tenth decretalparagraph thereof awarding the plaintiff the sum of $33,488, and (h) the eleventh decretalparagraph thereof valuing the marital portion of the plaintiff's pension at $106,957.98, (2) bydeleting from the fifth decretal paragraph thereof the words "is awarded a judgment against theDefendant, Donna Robinson, in a sum equal to any 'unused sick time funds' paid to theDefendant" and substituting therefor the words "shall not be liable for any sum," and (3) bydeleting from the ninth decretal paragraph thereof the words "paragraphs A, B, and C" andsubstituting therefor the words "paragraph B," and by deleting the word "forthwith" andsubstituting the words "as of June 7, 2006"; as so modified, the judgment is affirmed, withoutcosts or disbursements.
The parties to the underlying matrimonial action were married on February 19, 1973 andhave three children. The principal assets acquired by the parties during their marriage includedtheir approximately $100,000 equity interest in the marital residence, their individual retirementaccount (hereinafter IRA) and joint bank accounts, the plaintiff's deferred compensation plan,and his future retirement pension, valued at more than $242,000.
The plaintiff left the marital residence in July 1991 after more than 18 years of marriage. InNovember 1991 the defendant commenced the underlying action, inter alia, for a divorce. Theparties entered into a separation agreement entitled a "stipulation of settlement," dated January 9,1992. The defendant was represented by an attorney in connection with the negotiation of theseparation agreement, while the plaintiff represented himself. At that time, the plaintiff was 42years old and employed by the Nassau County Sheriff's Department, while the defendant was 41years old, unemployed, and legally blind, albeit able to work part-time and receiving SocialSecurity disability benefits.
The parties visited the defendant's attorney twice in connection with the separationagreement, and the attorney advised the plaintiff repeatedly, both in writing and orally, that heshould retain separate counsel. The plaintiff testified that he voluntarily signed the agreement onJanuary 9, 1992, although he contended that he merely "scanned" the agreement and had notunderstood the provisions that he read. It is undisputed, however, that the agreement prepared bycounsel contained the general terms previously agreed upon between the parties during their ownprivate negotiations.
In relevant part, the separation agreement provided that the marital residence subject to themortgage, the IRAs and joint bank accounts, and the plaintiff's deferred compensation plan in theform of promissory notes would be distributed to the defendant and that she would receive childsupport and lifetime maintenance even upon remarriage. Further, the agreement provided that themaintenance payment would be increased by a percentage each time one of the children wasemancipated and by an additional 4% per annum. For his part, the plaintiff retained his pension,his automobile, some bank accounts, and certain furniture. The agreement was subsequentlyincorporated, but not merged, into the judgment of divorce dated April 17, 1992.
In 1998 the defendant remarried. On March 24, 2000 the plaintiff commenced this action toset aside the separation agreement as unfair, inequitable, and unconscionable. The defendantmoved for summary judgment dismissing the complaint, which motion was granted. By decisionand order dated June 2, 2003, this Court reversed the order granting the defendant's motion forsummary judgment dismissing the complaint, reinstated the complaint, and directed a hearing onthe issues of unconscionability and ratification (see Santini v Robinson, 306 AD2d 266[2003]).
Following that hearing, the Supreme Court, inter alia, (1) set aside the provisions of theparties' separation agreement awarding the defendant 100% of the plaintiff's deferredcompensation and the parties' IRAs, (2) terminated the defendant's exclusive possession of themarital home, (3) limited the plaintiff's obligation for college expenses of the parties' threechildren to $15,000 per year, (4) terminated the defendant's lifetime maintenance as of the dateof her 1998 remarriage, (5) awarded a money judgment to the defendant for all interest payableon a $19,000 promissory note dated January 9, 1992, and (6) awarded a credit of $33,488 to theplaintiff for his maintenance payments after the defendant's remarriage. [*3]The defendant appeals, and we modify.
"A stipulation of settlement should be closely scrutinized and may be set aside upon ashowing that it is unconscionable or the result of fraud, or where it is shown to be manifestlyunjust because of the other spouse's overreaching" (Cruciata v Cruciata, 10 AD3d 349, 350 [2004]; see Christian vChristian, 42 NY2d 63, 72-73 [1977]; Santini v Robinson, 306 AD2d 266 [2003];Gilbert v Gilbert, 291 AD2d 479 [2002]). Although stipulations of settlement are favoredby the courts and will not be lightly set aside (see Curtis v Curtis, 20 AD3d 653, 654 [2005]; Kavanagh v Kavanagh, 2 AD3d688, 688-689 [2003]; Gilbert v Gilbert, 291 AD2d 479, 480 [2002]; DomesticRelations Law § 236 [B] [3]), " 'courts have thrown their cloak of protection aboutseparation agreements and made it their business, when confronted, to see to it that they arearrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, andto set aside or refuse to enforce those born of and subsisting in inequity' " (Kessler v Kessler, 33 AD3d 42,46 [2006], quoting Christian v Christian, 42 NY2d at 72; see Curtis v Curtis, 20AD3d at 654). Separation agreements or portions thereof may be set aside if their terms evidencea bargain so inequitable "that no reasonable and competent person would have consented to it"(Bright v Freeman, 24 AD3d586, 588 [2005]; see Broer vHellermann, 2 AD3d 1247, 1248 [2003]; Tartaglia v Tartaglia, 260 AD2d 628,629 [1999]; Yuda v Yuda, 143 AD2d 657, 658 [1988]).
In applying these principles, the Supreme Court erred in setting aside the parties' entireseparation agreement as unconscionable since the equitable distribution of the marital propertywas not manifestly unjust (see Cruciata v Cruciata, 10 AD3d at 350; Lounsbury vLounsbury, 300 AD2d 812, 814 [2002]; Croote-Fluno v Fluno, 289 AD2d 669, 670[2001]). Pursuant to the separation agreement, the defendant was awarded, inter alia, the maritalresidence and most of its contents, the IRAs and the payment of certain promissory notes by theplaintiff, while the plaintiff retained his pension, his car, and some furniture. The plaintiffacknowledged at trial that he was willing to give the defendant everything as long as he retainedhis pension. Any inequity in this property division is not "so strong and manifest as to shock theconscience and confound the judgment" of this Court (Christian v Christian, 42 NY2d at71; see Lounsbury v Lounsbury, 300 AD2d at 814; Croote-Fluno v Fluno, 289AD2d at 670). Accordingly, these provisions of the separation agreement must be reinstated,except as provided herein below.
We agree with the Supreme Court that the interest provision in the promissory note and thelifetime escalating maintenance provisions are unconscionable (see Tartaglia v Tartaglia,260 AD2d at 629; Yuda v Yuda, 143 AD2d at 659). In particular, the plaintiffexecuted a promissory note for $19,000 in the defendant's favor with an annual interest rate of9%, which represented her one-half portion of the plaintiff's unused vacation and sick time.Although the unused vacation and sick time were not in "Pay Out" status until the plaintiff'sfuture retirement, the note provided that the annual 9% interest would accrue immediately uponexecution. This interest provision was manifestly unjust.
Furthermore, the plaintiff was obligated to pay child support and all college expenditures forthree children, as well as maintenance payments which increased each year during thedefendant's lifetime. The lifetime nature of the maintenance and its 4% increase each year for therest of the defendant's life, on top of a percentage increase following the emancipation of each oftheir children, represents a sum far in excess of the value of the plaintiff's marital distribution.
In fact, testimony elicited at trial revealed that by the time the plaintiff is 65 years of age, hewill be exhausting his primary marital asset by giving the defendant almost one half of his yearlypension. This Court finds "that no reasonable and competent person would have consented to"this lifetime escalating maintenance provision (Bright v Freeman, 24 AD3d at 588;see Christian v Christian, 42 NY2d at 71). Contrary to the Supreme Court's terminationof the defendant's maintenance upon her remarriage, a maintenance period of 16years—from the 1991 commencement of the matrimonial action to June 7, 2006—ismore appropriate under the extant circumstances and in accordance with Domestic RelationsLaw § 236 (B) (6) (a) (seeSchwalb v Schwalb, 50 AD3d 1206 [2008]; Sevdinoglou v Sevdinoglou, 40 AD3d 959, 960 [2007]). Given thisdetermination, the plaintiff is not entitled to any recoupment of maintenance he paid after thedefendant's remarriage in 1998 as set forth in the tenth decretal paragraph (see Rader v Rader, 54 AD3d 919[2008]; Redgrave v Redgrave, 25AD3d 973 [2006]).
The defendant's remaining contentions are without merit. Mastro, J.P., Fisher, Balkin andChambers, JJ., concur.