| Kabir v Kabir |
| 2011 NY Slip Op 05672 [85 AD3d 1127] |
| June 28, 2011 |
| Appellate Division, Second Department |
| S.M.S. Kabir, Respondent, v Rashida Kabir,Appellant. |
—[*1] Manoussos & Messer, PLLC, Garden City, N.Y. (Michael Manoussos of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals from an order of theSupreme Court, Queens County (Weiss, J.), dated February 9, 2010, which denied her motion,inter alia, to set aside the parties' separation agreement.
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to theSupreme Court, Queens County, for further financial disclosure and a hearing to determinewhether the separation agreement should be set aside, and a new determination on the motionthereafter.
"A separation agreement or stipulation of settlement which is fair on its face will be enforcedaccording to its terms unless there is proof of fraud, duress, overreaching, or unconscionability"(Linder v Linder, 297 AD2d 710, 711 [2002]; see Brennan-Duffy v Duffy, 22 AD3d 699 [2005]; Cohn v Cohn, 15 AD3d 332[2005]; O'Beirne v O'Beirne, 5AD3d 572, 573 [2004]). Although judicial review of such agreements is to be exercisedsparingly, with the goal of encouraging parties to settle their differences by themselves (seeChristian v Christian, 42 NY2d 63, 71-72 [1977]; Korngold v Korngold, 26 AD3d 358 [2006]), "courts have throwntheir cloak of protection" over postnuptial agreements, "and made it their business, whenconfronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be freefrom the taint of fraud and duress, and to set aside or refuse to enforce those born of andsubsisting in inequity" (Christian v Christian, 42 NY2d at 72; see Santini v Robinson, 68 AD3d745, 749 [2009]). Thus, "[i]n view of the fiduciary relationship existing between spouses,separation agreements are more closely scrutinized by the courts than ordinary contracts"(Cardinal v Cardinal, 275 AD2d 756, 757 [2000]; see Christian v Christian, 42NY2d at 72).
Applying these principles here, the Supreme Court erred in denying the motion of thedefendant (hereinafter the wife) which was, inter alia, to set aside the separation agreement andopen the matter for further financial disclosure and a fact-finding hearing. A reviewing courtexamining a challenge to a postnuptial agreement will view the agreement in its entirety andunder the totality of the circumstances (see Reiss v Reiss, 21 AD3d 1073, 1074 [2005]). However, withouta hearing to determine the totality of the circumstances, including the extent of the parties' assets,and the [*2]circumstances surrounding the execution of theagreement, it cannot be determined on this record whether or not equity should intervene toinvalidate the parties' agreement.
Here, the allegations set forth in the wife's affidavit in support of her motion, if proven, weresufficient to create an inference that the separation agreement was not valid. The wife has allegedthat the plaintiff (hereinafter the husband) concealed numerous assets of which she did notbecome aware until 2009, two years after the parties' July 11, 2007, separation agreement wasexecuted. The wife supported these allegations with deeds to real property, affidavits, and otherdocuments tending to show that the husband concealed assets. Moreover, the wife was notrepresented by counsel, and was neither fluent in English nor aided by a trained interpreter whenshe signed the separation agreement (see Juliani v Juliani, 143 AD2d 72, 74 [1988]).Under these facts, the Supreme Court should have exercised its equitable powers and directedfurther financial disclosure, to be followed by a hearing to test the validity of the settlementagreement (see Berkman v Berkman, 287 AD2d 426 [2001]; Christian vChristian, 42 NY2d 63 [1977]). Covello, J.P., Leventhal, Lott and Miller, JJ., concur.