Abillama v Carroll

[*1] Abillama v Carroll 2006 NY Slip Op 52134(U) [13 Misc 3d 1235(A)] Decided on November 14, 2006 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 14, 2006
Supreme Court, Suffolk County

Toufic F. Abillama, Plaintiff(s),

against

Maura Carroll, Defendant(s).



12744-05



McGuire Condon, P.C.

Attorneys for Defendant

160 East Main Street

Huntington, NY 11743

Caleca and Towner, P.C.

Attorneys for Plaintiff

257 Pantigo Road

East Hampton, NY 11937

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the Defendant, dated January 24, 2006, and supporting papers; (2) Affirmation in Opposition by the Plaintiff, dated March 8, 2006, and supporting papers; and (3) Reply Affidavit by the Defendant, dated April 4, 2006; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the defendant's motion, which seeks an Order dismissing the plaintiff's First and Third Causes of Action, is hereby granted; and it is further [*2]

ORDERED that the parties and their attorneys are directed to appear in Chambers for the undersigned, Part 17, on January 9, 2006 for purposes of settlement discussions and, if necessary, for purposes of entering into an expedited preliminary conference discovery order in connection with the plaintiff's Second Cause of Action; and it is further

ORDERED counsel for the movant shall serve a copy of this Order with Notice of Entry upon plaintiff's counsel pursuant to CPLR §2103(b)(1),(2) or (3) and shall thereafter file the affidavit of service with the Suffolk County Clerk.

The plaintiff and defendant were married in 1979 and have two children, Patrick, born March 3, 1983 (now 23) and Daniel, born August 26, 1987 (now 19). The parties were legally separated pursuant to a Separation Agreement executed by both of them before a Notary Public on March 26, 1991. Thereafter, on August 18, 1992, a conversion divorce was obtained by Maura Carroll, who was the plaintiff in the divorce action and the defendant in this action. The final Judgment of divorce was entered under index number 5097-92 in the Supreme Court, Rockland County, the county in which the parties resided at that time. The judgment incorporates the provisions of the Separation Agreement.

Subsequent to the entry of the judgment of divorce, Ms. Carroll commenced various enforcement proceedings in Family Court, Rockland County and, more recently, two petitions in the Family Court of Suffolk County where she now resides. After several Family Court appearances in connection with the Suffolk County petitions, the plaintiff commenced this Supreme Court action. The plaintiff previously moved by Order to Show Cause, which was later withdrawn as a result of counsel for the parties stipulating to the relief sought in the Order to Show Cause, to wit, a stay of the Family Court proceedings and consolidation of those proceedings with this Supreme Court Action. The June 29, 2005 stipulation was later so-ordered by Hon. James Hudson, A.J.S.C., on September 29, 2005.[FN1]

In his complaint, the plaintiff's First Cause of Action alleges that the parties' March 26, 1991 Separation Agreement should be set aside on the ground that he was not represented by counsel, and that the Agreement was unjust, unconscionable and the product of overreaching on the part of the defendant, in that it provided a grossly disproportionate award of support and maintenance to the defendant. The Second Cause of Action alleges that to the extent the Separation Agreement is not set aside, a judicial determination is necessary with respect to the rights and obligations of the parties regarding various provisions of the Agreement. The Third Cause of Action alleges that if the Agreement is not set aside, there should be a judicial determination that the defendant has waived entitlement to payments under the maintenance provisions of the Agreement, in that she has continually accepted a lesser amount of maintenance without objection or protest. [*3]

In the instant motion, the defendant seeks an order granting summary judgment in her favor, dismissing the plaintiff's First and Third Causes of Action. There is no request for dismissal of the plaintiff's Second Cause of Action. In support of her motion, the defendant essentially argues that the plaintiff's complaint is nothing more than a tactical maneuver and a retaliation by the plaintiff against the defendant because of the enforcement proceedings brought by her against him in Family Court. The defendant also argues that the plaintiff's failure to challenge the validity of the Separation Agreement during the fourteen (14) years prior to this action amounts to the plaintiff's ratification of the Agreement and precludes the plaintiff from now setting aside or rescinding the Agreement. The defendant further argues that there has been no signed written modification or waiver of the Agreement, and that therefore, there can be no waiver of her rights to maintenance under the Agreement.

THE FIRST CAUSE OF ACTION

In opposing summary judgment on the First Cause of Action, the plaintiff essentially argues that the distribution of the marital assets under the Agreement was inequitable. As an example, the plaintiff states that the defendant's attorney drafted the March 26, 1991 Agreement, but that he was not represented by counsel when it was signed. He also alleges that the Agreement is inequitable because under the Agreement, the defendant received the marital residence, a second residence in Southampton, her teacher pension and lifetime maintenance. He also states that the law degree earned by the defendant during the marriage was never valued or distributed.

First, although the plaintiff now claims he was not represented by an attorney when he signed the Agreement, it is readily apparent from its provisions that, even if he did not have legal counsel, he was nevertheless advised of his legal rights or, at minimum, had an opportunity to seek such counsel. In this regard, the March 26, 1991 Agreement was signed by the plaintiff before a Notary Public. In relevant part, one of the introductory paragraphs of the Agreement expressly states:

WHEREAS, the parties hereto have been fully, separately and independently apprised and advised of their respective legal rights, remedies, privileges and obligations, arising out of the marriage of the parties, or otherwise by counsel of their own choice, or has had such opportunity to seek such counsel

Second, at the time he signed the Agreement, the plaintiff also expressly represented that he fully understood the terms of the Agreement and believed such terms to be fair and in his own best interests. In this regard, another introductory paragraph states:

WHEREAS, the parties hereto each warrant and represent to the other that they, and each of them, fully understand all the terms, covenants, conditions, provisions and obligations incumbent upon each of them by virtue of this Agreement to be performed or contemplated by each of them hereunder, and each believes the same to be fair, just, reasonable and to his and her respective individual best interests

Thirdly, the plaintiff expressly acknowledged that the Agreement was fair and not the result [*4]of fraud, duress or undue influence. In this regard, Article XVI (Full Disclosure) of the Agreement states:

Both the legal and practical effects of this Agreement in each and every respect and the financial status of the parties have been fully explained to both parties by their respective counsel, and they both acknowledge that it is a fair agreement and not the result of a fraud, duress or undue influence exercised by either party or any other person or persons upon the other.

It is well established in New York that judicial review of separation agreements is to be exercised sparingly, with the goal of encouraging parties to settle their differences by themselves (see Christian v Christian, 42 NY2d 63, 396 NYS2d 817 [1977]; Korngold v Korngold, 26 AD3d 358, 810 NYS2d 206 [2d Dept 2006]; Brennan v Brennan, 305 AD2d 524, 759 NYS2d 744 [2d Dept 2003]). A party seeking to set aside a separation agreement that is fair on its face has the burden to prove fraud, duress, or overreaching, or that the agreement or stipulation is nonetheless unconscionable (id; see also, Wilson v Neppell, 253 AD2d 493, 677 NYS2d 144 [2d Dept 1998]). Unsupported and conclusory allegations are insufficient as a matter of law to create an inference of fraud, duress, overreaching, or unconscionability (Korngold, supra ). Without such showing of fraud, overreaching, or unconscionability, a separation agreement that is fair on its face will be enforced according to its specific terms (see, Torsiello v. Torsiello, 188 AD2d 523, 591 NYS2d 472 [2d Dept 1992]; Ruxton v. Ruxton, 181 AD2d 876, 581 NYS2d 448 [2d Dept 1992]; Stoerchle v. Stoerchle, 101 AD2d 831, 475 NYS2d 489 [2d Dept 1984]). In this matter, the plaintiff's opposing papers fail to raise questions of fact sufficient to defeat summary judgment on the First Cause of Action regarding the requisite showing of fraud, duress, overreaching or unconscionability necessary to set aside the parties' Separation Agreement (Strangolagalli v Strangolagalli, 295 AD2d 338, 742 NYS2d 914 [2d Dept 2002]).

The fact that one divorcing spouse was not represented by independent counsel when a stipulation of settlement was entered does not, without more, establish overreaching or require automatic nullification of the stipulation (Korngold v Korngold, 26 AD3d 358, 810 NYS2d 206 [2d Dept 2006]). This is especially true where that spouse expressly acknowledges that he or she was informed of his or her right to retain separate counsel and that the spouse's attorney, who drafted the agreement, repeatedly urged the unrepresented spouse to do so (id). Accordingly, even if Mr. Abillama was not represented by independent counsel when the Separation Agreement was executed, such fact does not, without more, establish overreaching or require automatic nullification of the Agreement (see, Levine v Levine, 56 NY2d 42, 451 NYS2d 26 [1982]; Warren v Rabinowitz, 228 AD2d 492, 644 NYS2d 315 [2 Dept 1996]; Tirrito v. Tirrito, 191 AD2d 686, 595 NYS2d 786 [2d Dept 1993]; Chauhan v. Thakur, 184 AD2d 744, 585 NYS2d 482 [2d Dept 1992]). Further, there is no evidence to suggest that Mr. Abillama was under any diminished physical or mental capacity at time he signed the Separation Agreement (see, Nasifoglu v Nasifoglu, 224 AD2d 504, 637 NYS2d 792 [2d Dept 1996]).

Moreover, the plaintiff's belated and conclusory claims of unfairness, almost a decade-and-a-half after he signed the Agreement, do not warrant setting the Agreement aside. Indeed, a separation agreement will not be overturned merely because it was improvident, not the most advantageous to the dissatisfied party, or because that party had a change of heart (see, Warren [*5]v Rabinowitz, 228 AD2d 492, 644 NYS2d 315 [2 Dept 1996]; Wilutis v Wilutis, 184 AD2d 639, 587 NYS2d 171 [2d Dept 1992]; Amestoy v. Amestoy, 151 AD2d 709, 543 NYS2d 141 [2d Dept 1989]; Sontag v. Sontag, 114 AD2d 892, 495 NYS.2d 65 [2d Dept 1985]). Accordingly, the plaintiff's First Cause of Action is dismissed.

THE THIRD CAUSE OF ACTION

In opposing summary judgment dismissal of the Third Cause of Action, the plaintiff argues that despite the defendant's prior Family Court actions in 1996, 1997, 1998 and 2004, the defendant has never sought enforcement of the maintenance provisions of the Agreement, and that she should be estopped from doing so now. According to the plaintiff, therefore, the defendant's motion should be denied and the Court should declare that the defendant has waived her right to enforce the maintenance provisions of Separation Agreement. It is undisputed that at no time have the parties entered into a written modification of the Agreement, nor has there been any written waiver of any of the provisions of the Agreement.

Article XVII (Modification and Waiver) of the parties' Separation Agreement states:

Neither this Agreement nor any provision herein shall be amended or modified or deemed amended or modified except by an agreement in writing duly subscribed in the knowledge with the same formality as this Agreement. Any waiver by either party of any provision of this Agreement, or any right or option hereunder, shall not be deemed a continuing waiver and shall not prevent or stop such party from thereafter enforcing such provision, right or option, and the failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this Agreement by the other party, shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect.

Any request by either party for modification, waiver or enforcement of the provisions of this agreement may be made to the Family Court.

As for the written intention and understanding of the parties at the time the Agreement was signed, Article XXIII (Entire Understanding) states:

(a)This Agreement contains the entire understanding of the parties who hereby acknowledge that there have been and are no representations, warranties, covenants or understandings other than those expressly set forth herein.

(b)It is further understood and agreed that any Rider(s) which shall be attached to this Agreement shall be formally executed by the parties and become a part of this Agreement. In the event there exists a conflict between the original body of this Agreement and any Rider(s) attached hereto, it is understood and agreed that the Rider(s) shall prevail.

The provisions of Article XVII and Article XXIII of the Agreement make clear that at the time the parties signed the March 26, 1991 Separation Agreement, they agreed that no modifications, [*6]waivers, riders or representations would be effective unless such were in writing and signed by the parties. Even if the plaintiff could somehow convince the Court that the defendant's failure to insist on strict performance of the maintenance provisions constituted an unwritten waiver of her maintenance rights, pursuant to Article XVII, such "waiver" would, nevertheless, not be deemed a continuing waiver and would not prevent the defendant from fully enforcing those rights under the Agreement.

In view of the non-waiver provisions of the Agreement, and inasmuch as the plaintiff has failed to proffer any evidence of affirmative conduct demonstrating a waiver of the defendant's legal rights, this Court finds that the defendant did not waive her rights to maintenance by failing to object to the lesser amount received during the years following the Agreement (see, Eldridge v Eldridge, 228 AD2d 473, 643 NYS2d 1021 [2d Dept 1996]; Mattera v Mattera, 214 AD2d 544, 625 NYS2d 59 [2d Dept 1995]; Fox v Ridinger, 234 AD2d 131, 651 NYS2d 41 [1st Dept 1996]). Accordingly, the plaintiff's Third Cause of Action is dismissed.

This constitutes the Decision of the Court.

Dated: __________________

PETER H. MAYER, J.S.C.

Footnotes

Footnote 1: According to the defendant's moving papers, the stipulation was so-ordered by Hon. William B. Rebolini on June 29, 2005; however, the copy annexed to the moving papers does not contain a so-ordered signature. Requisition and review of the County Clerk's file reveals that the Stipulation was actually signed by Judge Hudson on September 8, 2005.