| Rauso v Rauso |
| 2010 NY Slip Op 04166 [73 AD3d 888] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Susan Rauso, Respondent, v Raymond Rauso,Appellant. |
—[*1] Fuchs & Eichen, Harrison, N.Y. (Linda A. Eichen of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of an order of the Supreme Court, Westchester County (Martin, J.), datedSeptember 30, 2008, as denied those branches of his motion which were for an award of apendente lite attorney's fee and for leave to amend his counterclaim.
Ordered that the order is affirmed insofar as appealed from, with costs.
A postnuptial agreement which " 'is fair on its face will be enforced according to its termsunless there is proof of fraud, duress, overreaching, or unconscionability' " (Schultz v Schultz, 58 AD3d 616,616 [2009]), bearing in mind that an agreement is not unconscionable " 'merely because, inretrospect, some of its provisions were improvident or one-sided' " (id., quotingO'Lear v O'Lear, 235 AD2d 466 [1997]). Likewise, a marital settlement is a "contractsubject to principles of contract interpretation [and] a court should interpret the contract inaccordance with its plain and ordinary meaning" (Herzfeld v Herzfeld, 50 AD3d 851, 851 [2008] [internal quotationmarks omitted]; see Matter of Cricenti vCricenti, 60 AD3d 1052, 1053 [2009]). Where the agreement is "clear and unambiguouson its face, the parties' intent must be construed from the four corners of the agreement, and notfrom extrinsic evidence" (Herzfeld v Herzfeld, 50 AD3d at 852).
Here, in both the parties' postnuptial and separation agreements, the husband waived anyright to an interest in the parties' marital home. Reading the agreements "as a whole to determinethe parties' intent," it is plain that the parties' reasonable expectation would have been that, uponexecution of the postnuptial agreement, the husband would have no claim whatsoever on themarital home (DelDuca v DelDuca, 304 AD2d 610, 611 [2003]; see Van Kipnis v Van Kipnis, 11NY3d 573, 577 [2008]; Herzfeld v Herzfeld, 50 AD3d at 851). Likewise, there is noevidence that the husband's acquiescence to either agreement's terms was improperly obtained.Accordingly, the Supreme Court properly denied that branch of the husband's motion which wasfor leave to amend his counterclaim to assert a cause of action to impose a constructive trust onthe marital home.
Likewise, in the parties' separation agreement, the husband waived any right he mightotherwise have had to an award of a pendente lite attorney's fee. Accordingly, the Supreme Court[*2]properly denied that branch of his motion which was for suchan award (see Etzion v Etzion, 62AD3d 646, 653 [2009]; Valente v Valente, 269 AD2d 389, 389-390 [2000];Clanton v Clanton, 189 AD2d 849, 850 [1993]). Skelos, J.P., Balkin, Belen and Sgroi,JJ., concur.