| Bibeau v Sudick |
| 2014 NY Slip Op 07608 [122 AD3d 652] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| Ovila L. Bibeau, Respondent, v Lydia M.Sudick, Appellant. |
Friedlander, Friedlander & Arcesi, P.C., Ithaca, N.Y. (William S. Friedlanderand Betty D. Friedlander of counsel), for appellant.
McCormack & Phillips, Nyack, N.Y. (Ronald A. Phillips of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from so much of a judgment of the Supreme Court, Orange County (Onofry, J.),entered January 24, 2013, as, upon an order of the same court dated May 21, 2012, interalia, denying her cross motion for summary judgment on her counterclaim to set aside apremarital agreement between the parties as void, invalid, and unenforceable andgranting those branches of the plaintiff's separate cross motion which were for summaryjudgment determining that the premarital agreement is valid and enforceable anddismissing that counterclaim, and upon an order of the same court dated October 15,2012, granting that branch of the plaintiff's separate motion which was for summaryjudgment on the cause of action alleging an irretrievable breakdown of the maritalrelationship pursuant to Domestic Relations Law § 170 (7), incorporatedthe premarital agreement, awarded her a lump sum in lieu of maintenance, support, andequitable distribution in accordance with the premarital agreement, and is in favor of theplaintiff and against her dismissing that counterclaim.
Ordered that the judgment is reversed insofar as appealed from, on the law, withcosts, those branches of the plaintiff's cross motion which were for summary judgmentdetermining that the premarital agreement is valid and enforceable and dismissing thedefendant's counterclaim to set aside the premarital agreement as void, invalid, andunenforceable are denied, that counterclaim is reinstated, the order dated May 21, 2012,is modified accordingly, and the matter is remitted to the Supreme Court, Orange County,for further proceedings in accordance herewith.
On September 28, 2000, the plaintiff and the defendant executed a premaritalagreement which provided, at Paragraph Five thereof, that in the event of a divorce, thedefendant would receive, in lieu of maintenance, support, and equitable distribution, thesum of $25,000 for each year of the marriage. The parties also agreed to waive theirinterest in the elective share of each other's estate, and to make no claim to property titledin the other's name. According to financial statements attached to the premaritalagreement, the plaintiff, then 70 years of age, had assets of more than $10,000,000, whilethe defendant, then 38 years of age, had assets of approximately $170,000. Theagreement was signed in the office of the plaintiff's attorney, in the presence of anotherattorney who was purportedly representing the defendant. The parties were married onSeptember 30, 2000, two days after the premarital agreement was executed. There are nochildren [*2]of the marriage.
At the time of the marriage, the defendant, who had a background in marketingworks of fine art to corporations, had recently opened an art gallery in California. Sheclosed this business and relocated to Pine Bush, New York, in order to reside with theplaintiff in preparation for their marriage, and assist him in his business endeavors. Theseincluded real estate development, as well as breeding thoroughbred horses and managingpolo ponies.
In October 2010, the plaintiff commenced this action for a divorce pursuant toDomestic Relations Law § 170 (7), attesting to the irretrievable breakdownof the marriage, and submitting the premarital agreement as proof that all economicissues had been resolved. The defendant cross-moved for summary judgment on hercounterclaim to set aside the premarital agreement as void, invalid, and unenforceable.The plaintiff separately cross-moved for summary judgment determining that thepremarital agreement was valid and enforceable, and dismissing the defendant'scounterclaim alleging the converse.
In support of her cross motion, and in opposition to the plaintiff's separate crossmotion, the defendant offered proof that she signed the premarital agreement withoutbenefit of counsel, that she was presented with the agreement immediately prior tosigning it without discussion or negotiation of its terms, and that she was pressured tosign the agreement by being told that, if she did not, the plaintiff would cancel theimpending wedding, scheduled to take place two days later. Specifically, the defendantoffered proof in the form of the transcript of the deposition testimony of the attorney whopurportedly represented her in connection with the negotiation and execution of thepremarital agreement. This attorney was unable to produce a retainer or letter ofengagement, and had no recollection of the circumstances in which he was hired torepresent the defendant. Although he produced a note in his file which, in abbreviatedform, could be said to refer to a conversation with the defendant about several terms ofthe premarital agreement, the attorney had no independent recollection of meeting withthe defendant prior to the date of the signing of the premarital agreement. Moreover, hehad no recollection as to whether he explained to her the terms of the premaritalagreement or her rights pursuant to the laws regarding spousal support, equitabledistribution, and the election of a minimum share of a deceased spouse's estate. Inaddition, the defendant argued that the financial schedules prepared by the partiesdemonstrated such a financial disparity between them that the provision in the premaritalagreement that she receive a relatively small sum in lieu of her rights to maintenance,equitable distribution, or, if the plaintiff predeceased her, an elective share of theplaintiff's estate, without a corresponding benefit, was manifestly unfair andunconscionable. The defendant further contended that, according to the terms of thepremarital agreement, each party was to retain property titled in his or her name, whichmeant that, although she closed her fine arts marketing business, and assisted in theplaintiff's real estate development business, she was unduly pressured into agreeing toreceive no compensation for her contributions.
In opposition to the defendant's cross motion, and in support of his own separatecross motion, the plaintiff submitted the financial statements prepared by the partiessome 10 days prior to the signing of the premarital agreement, arguing that thisconstituted evidence that the defendant knew, or should have known, that she wasexpected to sign the agreement prior to the wedding, and could not claim surprise oroverreaching in connection with the monetary and property distribution provisions of thepremarital agreement.
The Supreme Court denied the defendant's cross motion, and granted those branchesof the plaintiff's separate cross motion which were to determine that the agreement wasvalid and enforceable and dismissing the defendant's counterclaim alleging the converse.The court subsequently granted that branch of the plaintiff's subsequent motion whichwas for summary judgment on the cause of action alleging an irretrievable breakdown ofthe marital relationship, and entered a judgment of divorce. The defendant appeals, aslimited by her brief, from the provisions of the judgment of divorce providing for thedistribution of marital assets and awarding her money pursuant to the terms of thepremarital agreement.
An agreement between spouses or prospective spouses should be closely scrutinized,and may be set aside upon a showing that it is unconscionable, or the result of fraud, orwhere it is [*3]shown to be manifestly unfair to onespouse because of overreaching on the part of the other spouse (see Christian vChristian, 42 NY2d 63, 72-73 [1977]; Matter of Fizzinoglia, 118 AD3d 994, 995 [2014], lvgranted — NY3d &mdash, 2014 NY Slip Op 87279 [2014]; Thantu v Laifook, 110 AD3d983, 984 [2013]; Pippis vPippis, 69 AD3d 824, 825 [2010]). Such an agreement may be invalidated if theparty challenging the agreement demonstrates that it was the product of fraud, duress, orother inequitable conduct (see Christian v Christian, 42 NY2d at 73; Cioffi-Petrakis v Petrakis, 103AD3d 766, 767 [2013]; Petracca v Petracca, 101 AD3d 695, 699 [2012]; Leighton v Leighton, 46 AD3d264, 265 [2007]).
There is evidence that the defendant was not represented by independent counsel inconnection with the preparation and execution of the allegedly "take-it-or-leave-it"premarital agreement that is the subject of this appeal. In addition, contrary to theplaintiff's contention, the preprinted financial forms executed by the parties do notdemonstrate that they were expecting to enter into a premarital agreement, as the formsrecite that they were furnished by a commercial bank in connection with an applicationfor a mortgage. The defendant therefore raised triable issues of fact as to whether thepremarital agreement was the product of overreaching, such that it would be renderedunenforceable (see Petracca v Petracca, 101 AD3d at 699; Pippis vPippis, 69 AD3d at 825; Leighton v Leighton, 46 AD3d at 265).
Accordingly, the Supreme Court should have denied that branch of the plaintiff'scross motion which was for summary judgment determining that the premaritalagreement was valid and enforceable and dismissing the defendant's counterclaimalleging the converse. We, thus, remit the matter to the Supreme Court, Orange County,for a hearing and a determination thereafter on the validity of the premarital agreement,for further resolution of any economic issues, if necessary, and the entry an appropriateamended judgment of divorce thereafter. Dillon, J.P., Dickerson, Cohen and Duffy, JJ.,concur.