| O'Hanlon v O'Hanlon |
| 2014 NY Slip Op 01303 [114 AD3d 915] |
| February 26, 2014 |
| Appellate Division, Second Department |
| Susan O'Hanlon, Appellant, v James O'Hanlon,Respondent. |
—[*1] Weinstein Kaplan & Cohen, P.C., Garden City, N.Y. (Alexander Mark Kaplan andErika L. Conti of counsel), for respondent.
In an action for divorce and ancillary relief, the plaintiff appeals from an order of theSupreme Court, Nassau County (Janowitz, J.), dated January 3, 2013, which granted thedefendant's motion to set aside the parties' stipulation of partial settlement.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting the defendant's motion in its entirety and substituting therefor a provisiongranting that branch of the motion which was to set aside the provision of the parties'stipulation of partial settlement relating to child support, and otherwise denying themotion; as so modified, the order is affirmed, without costs or disbursements, and thematter is remitted to the Supreme Court, Nassau County, for a determination of thedefendant's child support obligation in accordance with the Child Support Standards Act.
In 2009, the plaintiff commenced the instant action for divorce and ancillary reliefagainst the defendant. On August 21, 2012, the parties, while each was represented bycounsel, entered into an oral stipulation of partial settlement on the record, resolving theissues, inter alia, of equitable distribution, maintenance, and child support. Thereafter,the defendant moved to vacate the stipulation of partial settlement on grounds ofunconscionability and duress.
"A stipulation of settlement which is made in open court by parties who arerepresented by counsel and who unequivocally agree to its terms will not be set asideabsent a showing that the stipulation was tainted by mistake, fraud, duress, overreachingor unconscionability" (Libert vLibert, 78 AD3d 790, 791 [2010] [internal quotation marks omitted]; see Taormina v Taormina, 85AD3d 766 [2011];Pretterhofer v Pretterhofer, 37 AD3d 446 [2007]). As relevant here, a stipulationof settlement is unconscionable if it "is one which no person in his or her senses and notunder delusion would make on the one hand, and no honest and fair person would accepton the other, the inequality being so strong and manifest as to shock the conscience andconfound the [*2]judgment of any person of commonsense" (Morad v Morad, 27AD3d 626, 627 [2006]; see Christian v Christian, 42 NY2d 63, 71 [1977]).However, a stipulation of settlement is not unconscionable "simply because it might havebeen improvident or one-sided" (Label v Label, 70 AD3d 898, 900 [2010] [internalquotation marks omitted]; seeEtzion v Etzion, 62 AD3d 646, 653 [2009]; Cosh v Cosh, 45 AD3d 798, 800 [2007]; O'Lear vO'Lear, 235 AD2d 466 [1997]). The defendant here, as the party seeking to vacatethe stipulation of partial settlement, had the burden of showing that its terms wereunconscionable (see Campionev Alberti, 98 AD3d 706 [2012]; Cervera v Bressler, 85 AD3d 839, 841 [2011]).
Applying these principles to the matter at bar, the Supreme Court erred in vacatingthe parties' stipulation of partial settlement in its entirety. The record demonstrates thatthe defendant was represented by independent counsel and received meaningful benefitsunder the agreement which included, inter alia, one half of the net proceeds from the saleof the marital residence and the plaintiff's waiver of her claim for lifetime maintenance(see Lazar v Lazar, 88AD3d 852 [2011]; Cioffi-Petrakis v Petrakis, 72 AD3d 868, 869 [2010];Etzion v Etzion, 62 AD3d at 654; Schultz v Schultz, 58 AD3d 616, 617 [2009]). Contrary tothe defendant's contention, he failed to demonstrate, on this record, that the plaintiff hadmore income than she represented or that she did not make meaningful contributionswhich increased the value of the defendant's separate property.
In addition, the defendant failed to establish that he entered into the stipulation ofpartial settlement due to duress or coercion based upon the plaintiff's and her counsel'spurported threats to proceed to trial (see Lounsbury v Lounsbury, 300 AD2d 812,815 [2002]; Lyons v Lyons, 289 AD2d 902, 904 [2001]; Cappello vCappello, 274 AD2d 539 [2000]).
Accordingly, the Supreme Court improperly granted the defendant's motion to vacatethe entire stipulation of partial settlement.
However, the Supreme Court properly determined that the stipulation's provisionrelating to child support was invalid because it failed to recite that the parties wereadvised of the relevant provisions of the Child Support Standards Act (hereinafter theCSSA), and that they were aware that the application of the CSSA guidelines wouldresult in the calculation of the presumptively correct amount of support (seeDomestic Relations Law § 240 [1-b] [h]; Lepore v Lepore, 276 AD2d 677,678 [2000]). Moreover, it could not be determined from this record whether the childsupport award deviated from the CSSA guidelines because the stipulation failed to recite,inter alia, the parties' incomes. Accordingly, the child support provision of the stipulationwas not enforceable and was properly vacated by the Supreme Court. Mastro, J.P.,Austin, Sgroi and Miller, JJ., concur.