| Herr v Herr |
| 2012 NY Slip Op 05593 [97 AD3d 961] |
| July 12, 2012 |
| Appellate Division, Third Department |
| Kelly A. Herr, Respondent, v James E. Herr,Appellant. |
—[*1] Macht, Brenizer & Gingold, PC, Syracuse (Jon W. Brenizer of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Cerio Jr., J.), entered May 18, 2011 inMadison County, which, among other things, granted plaintiff's motion to rescind a prenuptialagreement between the parties.
Plaintiff and defendant, who had each gone through a divorce, began to discuss marriage in2002. As part of that discussion, plaintiff encouraged defendant to prepare a prenuptialagreement in order to overcome his reluctance to remarry and to accommodate each party's desireto devise certain assets to their children from their previous marriages. Defendant then contactedan attorney to draft an agreement that would allow the parties to opt out of the statutory schemegoverning equitable distribution. When defendant presented an early draft of the agreement toplaintiff in 2003, she objected to its failure to provide for her in the event that defendant diedwhile the parties were still married. Defendant had his attorney add language to the agreementstating that it would not preclude plaintiff from making claims on defendant's separate propertyin the event of his death. Additionally, language which required the parties to forfeit their rightsto each other's retirement plans by consenting to the beneficiary designation made by the otherparty was completely eliminated. Apparently satisfied with the changes, plaintiff executed theagreement and, two days later, the parties were married.
In 2010, plaintiff commenced this action for divorce and, thereafter, moved for, among otherthings, an order setting aside the prenuptial agreement. Following hearings, Supreme Court foundthat the evidence did not support plaintiff's contention that the signing of the agreement [*2]was the product of duress or coercion. Nevertheless, the court heldthat the terms of the agreement were unconscionable because—as read by thecourt—they did not allow plaintiff any interest in defendant's property in the event that themarriage terminated by his death and, since that was the provision that plaintiff had insisted on,she could not have understood its language. Accordingly, the court granted plaintiff's motion toset aside the agreement, giving rise to this appeal.
We agree with defendant that Supreme Court erred. "[D]uly executed prenuptial agreementsare generally valid and enforceable given the 'strong public policy favoring individuals orderingand deciding their own interests through contractual arrangements' " (Van Kipnis v Van Kipnis, 11 NY3d573, 577 [2008], quoting Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]).Such an agreement is " 'construed in accord with the parties' intent, which is generally gleanedfrom what is expressed in their writing' " (Ungar v Savett, 84 AD3d 1460, 1461 [2011], quoting VanKipnis v Van Kipnis, 11 NY3d at 577; see Domestic Relations Law § 236 [B][3], [5] [a]). So long as the agreement is fair on its face, it will be enforced according to its termsabsent proof of fraud, duress, overreaching or unconscionability (see Darrin v Darrin, 40 AD3d1391, 1392-1393 [2007], lv dismissed 9 NY3d 914 [2007]; Pulver v Pulver, 40 AD3d 1315,1317 [2007]).
In holding that the prenuptial agreement was unconscionable, Supreme Court erroneouslyinterpreted the agreement's provisions as failing to provide for plaintiff in the event ofdefendant's death during the parties' marriage. The agreement's second recital states that theparties desire their separate property, as defined in the agreement, to be free from any claim ofthe other if the marriage were to terminate "other than by death." Paragraph 1.1 of the agreementfurther emphasizes that the parties waive their right to share in each other's separate property inthe event the marriage terminates other than by death. Paragraph 1.2 specifically provides that theparties do not waive any rights to share in each other's separate property in the event of death.While paragraph 1.3 states that "neither party shall at any time make a claim against the separateproperty owned by the other" and, when read separately, it may suggest an internal inconsistencyin the document, "[a] contract should be interpreted in a way which reconciles all its provisions,if possible" (Green HarbourHomeowners' Assn., Inc. v G.H. Dev. & Constr., Inc., 14 AD3d 963, 965 [2005]; see Brad H. v City of New York, 17NY3d 180, 185 [2011]; Kass v Kass, 91 NY2d 554, 566-567 [1998]; Crow & Sutton Assoc., Inc. v WelliverMcGuire, Inc., 32 AD3d 651, 651 [2006]; Matzen Constr. v Schultz, 257 AD2d724, 725-726 [1999]). Thus, "[w]here a contract . . . employs contradictorylanguage, specific provisions control over general provisions" (Green Harbour Homeowners'Assn., Inc. v G.H. Dev. & Constr., Inc., 14 AD3d at 965; see Muzak Corp. v Hotel TaftCorp., 1 NY2d 42, 46 [1956]; Hejnav Reilly, 88 AD3d 1119, 1121 [2011]; Matter of Lewiston-Porter Cent. School Dist.v Sobol, 154 AD2d 777, 779 [1989], lv dismissed 75 NY2d 978 [1990]). Here,paragraph 1.2 carves out a specific exception to the general language of paragraph 1.3 and, takentogether, these provisions establish that plaintiff retained a right to her elective share indefendant's separate property in the event that the marriage terminated by death. Accordingly, wedisagree with Supreme Court's determination that plaintiff's interest in defendant's separateproperty was "at best, illusory."
In view of this, we need not consider the extrinsic evidence of the parties' intent. Were we todo so, however, we would find that it supports our interpretation. As plaintiff's own testimonyestablished that she was fully aware of the rights she was waiving at the time she signed theagreement and, as an agreement will not be set aside simply because a party relinquished morethan the law would have provided (see Cioffi-Petrakis v Petrakis, 72 AD3d [*3]868, 868-869 [2010]; see also Cheruvu v Cheruvu, 59 AD3d 876, 878 [2009];Lounsbury v Lounsbury, 300 AD2d 812, 814 [2002]), we cannot conclude that theagreement is unconscionable. In view of our determination, defendant's remaining contentionseeking reformation of the agreement is academic.
Mercure, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted plaintiff's motion to rescindthe prenuptial agreement; motion denied; and, as so modified, affirmed.