| Infante v Infante |
| 2010 NY Slip Op 06779 [76 AD3d 1048] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Anna Maria Infante, Respondent, v Raffaele Infante,Appellant. |
—[*1]
In a matrimonial action, the defendant appeals, as limited by his brief, from so much of anorder of the Supreme Court, Nassau County (Zimmerman, J.), dated May 5, 2009, as amendedAugust 4, 2009, as granted those branches of the plaintiff's motion which were to set aside, interalia, the equitable distribution, maintenance, and child support provisions of the parties'stipulation of settlement, and that branch of the plaintiff's separate motion which was forpendente lite relief to the extent of awarding her temporary child support and maintenance in thesum of $2,700 per month.
Ordered that the order, as amended, is affirmed insofar as appealed from, without costs ordisbursements.
"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, 68 AD3d 745, 749 [2009]; Chapin v Chapin, 12 AD3d 550,551 [2004]; Berkman v Berkman, 287 AD2d 426 [2001]). Although judicial review ofstipulations of settlement such as postnuptial agreements is to be exercised sparingly, with thegoal of encouraging parties to settle their differences by themselves (see Christian vChristian, 42 NY2d at 71-72; Korngold v Korngold, 26 AD3d 358 [2006]; Curtis v Curtis, 20 AD3d 653,654-655 [2005]), "courts have thrown their cloak of protection" over postnuptial agreements,"and made it their business, when confronted, to see to it that they are arrived at fairly andequitably, in a manner so as to be free from the taint of fraud and duress, and to set aside orrefuse to enforce those born of and subsisting in inequity" (Christian v Christian, 42NY2d at 72; see Santini v Robinson, 68 AD3d at 749). "To warrant equity's intervention,no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to aspouse because of the other's overreaching" (Christian v Christian, 42 NY2d at 72; see Barchella v Barchella, 44 AD3d696, 697 [2007]; O'Malley vO'Malley, 41 AD3d 449, 450 [2007]). An agreement may be set aside if its termsevidence a bargain so inequitable "that no reasonable and competent person would haveconsented to it" (Bright v Freeman,24 AD3d 586, 588 [2005]; seePippis v Pippis, 69 AD3d 824 [2010]; Santini v Robinson, 68 AD3d at 749).
Applying these principles here, we agree with the Supreme Court that the equitabledistribution, maintenance, and child support provisions of the parties' stipulation of settlementare so one-sided and unfair that no reasonable and competent person would have consented tothem. Among other things, the wife, who was the primary caregiver for the children during theparties' 15-[*2]year marriage, waived her right to maintenanceand an interest in the husband's pizzeria business, and agreed to use $200,000 in separateproperty funds to pay off the bulk of the first mortgage on the marital residence, despite the factthat the mortgage had been refinanced in order to provide capital for the husband's business.Furthermore, considering the nature of the husband's business and the past level of support heprovided to the children, the agreed-upon amount of child support is wholly inadequate. Underthese circumstances, the Supreme Court properly granted those branches of the plaintiff's motionwhich were to set aside, inter alia, the equitable distribution, maintenance, and child supportprovisions of the parties' stipulation of settlement (see Bright v Freeman, 24 AD3d at588; Gibson v Gibson, 284 AD2d 908, 909 [2001]), and properly awarded temporarychild support and maintenance. Mastro, J.P., Eng, Leventhal and Roman, JJ., concur.