| Mesiti v Mongiello |
| 2011 NY Slip Op 03941 [84 AD3d 1547] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Anna Marie Mesiti, Appellant, v Anthony Mongiello,Respondent. |
—[*1] Kalter, Kaplan, Zeigler & Forman, Woodbourne (Terry S. Forman of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Ledina, J.), entered June 23, 2010 inSullivan County, which, among other things, granted defendant's motion to dismiss thecomplaint.
The parties were married in 1987 and are the parents of two children, born in 1993 and 1998.In April 2008, plaintiff (hereinafter the wife) commenced an action for divorce. In September2008, respondent (hereinafter the husband) filed an application seeking sole custody of thechildren, and a hearing upon that application was scheduled for September 11, 2008. Shortlybefore that hearing, the parties signed two written agreements—one entitled "Separationand Property Settlement Agreement" and the other entitled "Child Support and CustodySettlement." On the day of the hearing, the wife appeared with her attorney, who informedSupreme Court that the wife had signed the agreements against his advice and his law firmwished to withdraw as her counsel. Supreme Court then granted the wife a 10-day adjournmentto reconsider her consent to the agreements and to seek the advice of new counsel. Bycorrespondence faxed to Supreme Court on September 17, 2008, the wife requested athree-to-four-week extension of time to obtain counsel. When the parties reconvened onSeptember 22, 2008, Supreme Court asked the wife if she needed additional time to reconsiderthe agreements. In response, the wife withdrew her extension request and declared that "[shewas] just going to take the agreement and just end all this" and that she would "go with theagreement that [the parties] signed." Supreme Court then accepted the parties' agreements, whichwere incorporated, [*2]but not merged, into a judgment ofdivorce.
By correspondence to Supreme Court dated September 26, 2008, the wife asserted that shehad been forced into signing "all legal documents related to all aspects of [her] life" andrequested that Supreme Court assist her in retracting "all signatures pertaining" to the September22, 2008 proceeding. In January 2010, the wife commenced this action, seeking, among otherthings, to rescind the agreements based upon allegations of fraud, duress, overreaching andunconscionability. Supreme Court granted the husband's motion to dismiss the complaint forfailure to state a cause of action. The wife now appeals, and we affirm.
"While a separation agreement will be more closely scrutinized by the courts than ordinarycontracts given the fiduciary relationship between husband and wife, such an agreement will notbe set aside unless there is evidence of 'overreaching, fraud, duress or a bargain so inequitablethat no reasonable and competent person would have consented to it' " (Empie v Empie, 46 AD3d 1008,1009 [2007], quoting Curtis vCurtis, 20 AD3d 653, 654 [2005]; see Smith v Smith, 75 AD3d 784, 786 [2010]). "[S]pouses areencouraged to resolve their own issues and judicial review of separation agreements is to beexercised sparingly" (Marin-Brown vBrown, 79 AD3d 1302, 1303 [2010]). When considering the wife's claims in the contextof a motion to dismiss pursuant to CPLR 3211, "the complaint is liberally construed, the factsalleged therein are accepted as true, [the wife is] accorded every favorable inference and the courtdetermines only whether the facts alleged in the complaint 'fit within any cognizable legal theory'" (Lazic v Currier, 69 AD3d1213, 1213-1214 [2010], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Lopes v Bain, 82 AD3d 1553,1555 [2011]; Keehle v Diocese ofSyracuse, 80 AD3d 974, 974 [2011]). However, "[t]he rule that the facts alleged arepresumed to be true does not apply . . . to legal conclusions or to factual claimswhich are either inherently incredible or flatly contradicted by documentary evidence" (QuailRidge Assoc. v Chemical Bank, 162 AD2d 917, 918 [1990], lv dismissed 76 NY2d936 [1990]; accord Lopes v Bain, 82 AD3d at 1555).
In first addressing the wife's claim of duress, she was required to demonstrate that threatsallegedly made by the husband "deprived [her] of the ability to act in furtherance of [her] owninterests, or deprived her of the ability to exercise her own free will" (Lyons v Lyons, 289AD2d 902, 904 [2001], lv denied 98 NY2d 601 [2002] [internal quotation marks andcitation omitted]; see Morand vMorand, 2 AD3d 913, 914 [2003]). The wife alleged that, between September 3, 2008and September 11, 2008, the husband and his attorneys threatened her, without counsel present,that unless she signed the agreements and advised Supreme Court that she did so by her own freewill, her children would be taken from her. However, the wife's own statements at the September11, 2008 court appearance belies this claim. At that proceeding, Supreme Court made adeliberate and careful inquiry into whether the wife read the agreements and understood theirterms, provisions and legal implications. The wife, under oath, stated that she was satisfied thatthere had been full disclosure of all the marital property and confirmed that she was not coercedinto executing the agreements. The wife acknowledged that counsel had advised her not toexecute the agreements, but she decided to so anyway, she conceded that she had been advisedon the law concerning child support and she waived the guidelines. Thereafter, at the September22, 2008 court appearance, the wife withdrew her request for more time to consult an attorneyand, in response to the court's inquiry as to whether defendant's answers would be different if shewas asked the same questions posed to her at the September 11, 2008 court appearance,defendant answered, "No." Accordingly, the wife's allegations of duress are flatly contradicted bythe transcripts of the September 11 and 22, 2008 court proceedings and are [*3]not entitled to any deferential consideration (see Maas v CornellUniv., 94 NY2d 87, 91 [1999]; Balunas v Town of Owego, 56 AD3d 1097, 1098 [2008], lvdenied 12 NY3d 703 [2009]; Quail Ridge Assoc. v Chemical Bank, 162 AD2d at918). Furthermore, since the husband had the right to call witnesses in support of his applicationseeking custody of the children, we are unpersuaded that the mere presence of those witnesses inthe courtroom in anticipation of a hearing on that application constitutes duress. Accordingly, weagree with Supreme Court that the wife's allegations of duress are wholly unsupported andconclusory such that she failed to state a cause of action therefor.
We are also unpersuaded that Supreme Court erred in dismissing the wife's claims ofoverreaching and unconscionability. We reject the wife's contention that an inference ofoverreaching is established by the fact that she did not have counsel present when she executedthe agreements (see Marin-Brown v Brown, 79 AD3d at 1303; Sullivan v Sullivan, 46 AD3d1195, 1196 [2007]). At the September 11, 2008 hearing, the wife testified that she rejectedthe advice of her counsel and, without coercion, signed the agreements after reviewing the same.The wife was thereafter provided with the opportunity to seek legal advice, but she never did.Under these circumstances, the wife's election to proceed without counsel does not compelinvalidation of the agreements (see Marin-Brown v Brown, 79 AD3d at 1303).
Furthermore, while the wife claims that the agreements were unconscionable because, amongother things, she was not awarded maintenance, she was owed back child support, she receivednothing for her interest in several parcels of real property and she was provided with no resourcesto pay the mortgage on the martial residence, a review of the entirety of the agreements does notreveal them to be "so one-sided as to shock the conscience" (id. at 1304; see Garner v Garner, 46 AD3d1239, 1240 [2007]; Lounsbury v Lounsbury, 300 AD2d 812, 814 [2002];Croote-Fluno v Fluno, 289 AD2d 669, 670 [2001]). Pursuant to the agreements, the wifereceived, among other things, the marital home worth approximately $891,700, a distributiveaward of $1,000,000, payable at the rate of $100,000 per year for 10 years, a cash payment in theamount of $273,000, health insurance coverage for 10 years, child support of $500 per week, and$5,000 towards her legal fees. The wife was also relieved of all the debts and obligations fromthe parties' business. The husband further assumed full health insurance coverage for the parties'children and agreed to pay 100% of their unreimbursed medical and dental expenses.Accordingly, and in noting that "[a]n unequal division of marital assets in a separation agreementis not determinative of the issues of unconscionability, fraud or overreaching" (Croote-Flunov Fluno, 289 AD2d at 670), we cannot say that Supreme Court erred in determining that thewife failed to state a claim for overreaching and unconscionability.
Finally, we find that the wife "ratified the terms of the stipulation by accepting the benefitsthereunder for more than a year" (Weissman v Weissman, 42 AD3d 448, 450 [2007], lvdenied 9 NY3d 813 [2007]; seeRicca v Ricca, 57 AD3d 868, 870 [2008]; Boyle v Burkich, 245 AD2d 609, 610[1997]). To the extent that the wife, for the first time in her reply brief, asserts that certainprovisions of the agreements are false, void and unenforceable, such arguments are not properlybefore us (see Bell v White, 55AD3d 1211, 1215 [2008]; O'Sullivan v O'Sullivan, 206 AD2d 960, 961 [1994]). Thewife's remaining contentions have been considered and are found to be without merit.
Spain, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.