Bernardi v Bernardi

[*1] Bernardi v Bernardi 2009 NY Slip Op 51947(U) [24 Misc 3d 1251(A)] Decided on September 16, 2009 Supreme Court, Westchester County Jamieson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2009
Supreme Court, Westchester County

Cynthia Bernardi, Plaintiff,

against

Glen Bernardi, Defendant.



8328/2009



Steven Lewis, Esq.

Stephens Baroni Reilly & Lewis

Attorneys for Plaintiff

175 Main Street, Suite 800

White Plains, NY 10601

Farruto, Berman & Slater

Attorneys for Defendant

1250 Central Park Avenue

Yonkers, NY 10704

Linda S. Jamieson, J.

Defendant's motion seeks summary judgment dismissing "the complaint and defenses in [sic] granting Defendant's summary judgment for a divorce based on living separate and apart for one year." In response, plaintiff's cross-motion seeks $3,500 per month in maintenance and $20,000 in counsel fees.

The parties in this action were married in January 1987. In May 1998, they entered into a first post-nuptial agreement (the "First Agreement"). In January 2006, the parties entered into a second post-nuptial agreement (the "Second Agreement"). In April 2009, plaintiff commenced this action upon the grounds of cruel and inhuman treatment and adultery, failing to mention the existence of the First and Second Agreements.

The Agreements Are Valid

Plaintiff argues that the Agreements are invalid because, among other things, (1) they are unconscionable, in that plaintiff would not receive under the Agreements as much in equitable distribution (and maintenance) as she would otherwise be entitled to; (2) the First Agreement is a draft, not a final document; (3) the First Agreement is barred by the Statute of Limitations; and (4) the First Agreement is not properly acknowledged.

At the outset, the Court must point out that there is no problem with the acknowledgment of the First Agreement. While the acknowledgment contained in the First Agreement may not use the exact language set forth in Real Property Law § 309-a, there is no requirement that "a certificate of acknowledgment contain the precise language set forth in the Real Property Law. Rather, an acknowledgment is sufficient if it is in substantial compliance with the statute." Weinstein v. Weinstein, 36 AD3d 797, 798, 830 NYS2d 179, 180 (2d Dept. 2007). Weinstein goes on to say that "There are two aspects to an acknowledgment: the oral declaration of the signer of the document and the written certificate, prepared by . . .a notary public. Since both aspects were satisfied here, the acknowledgment substantially complied with the requirements of the Real Property Law." Id., 830 NYS2d at 180-181. See also In re Probate Proceeding, Will of [*2]Abady, 2009 WL 2611338 (Sur. Ct. Dutchess Co. Aug. 21, 2009). The same is true in this instance, where the First Agreement is signed three times by each party. On the first signature page, the First Agreement contains the parties' signatures, which are acknowledged by a notary. On a subsequent page, the parties signed the First Agreement again, and then below stated that the parties acknowledge their marriage, and that "subsequently we entered into a Stipulation of Settlement and Separation Agreement dated 3-31, 1998, which was subscribed and acknowledged by us on 5-5, 1998." This statement was again signed by the parties, and these third signatures were again notarized. This abundance of signatures and notarizations certainly suffices to meet the requirements of DRL § 236(B)(3).

Given the multiplicity of signatures, which plainly evidence the parties' intent to be bound, plaintiff has a hard time arguing that the First Agreement is an incomplete draft rather than an enforceable contract. While it is true that there are blanks in the First Agreement, none of the missing information is so material as to render the entire document unenforceable.[FN1] See generally Knight v. Barteau, 2009 WL 2619648 (2d Dept. Aug. 25, 2009) (parties may agree to be bound to a contract even if a material term is left open, if they intended that result). Cf. Martin v. Citibank, N.A., 64 AD3d 477, 883 NYS2d 483 (1st Dept. 2009) (fact issue precluded summary judgment where key page of agreement was missing, and there was evidence that plaintiff had never been provided with the complete document).

Regardless of the alleged incompleteness of the First Agreement, the alleged impropriety of the acknowledgment, or even the alleged Statute of Limitations problem (which the Court finds it unnecessary to address), the First Agreement is a binding, enforceable agreement for one simple reason: the parties reaffirmed, validated, and ratified (and modified) the First Agreement in the Second Agreement. The Second Agreement clearly states in the first numbered paragraph that "Except as modified herein the parties reaffirm the terms of the" First Agreement. In several other places in the Second Agreement, the parties state that certain paragraphs of the First Agreement are "reaffirmed." The final paragraph of the Second Agreement concludes, just as it began, with the statement that "Except as modified herein, the parties reaffirm their" First Agreement. Nor does the Second Agreement have any flaws in its acknowledgment, as plaintiff concedes.[FN2] The Second Agreement thus incorporates, and modifies, the First Agreement, which would overcome any potential flaws in the First Agreement. See, e.g., Ray v. Ray, 61 AD3d 442, 447, 876 NYS2d 383, 388 (1st Dept. 2009) ("A party, by her own acts or words, may ratify what [*3]would otherwise be a questionable contract. . . ."); Ricca v. Ricca, 57 AD3d 868, 870, 870 NYS2d 419, 420-421 (2d Dept. 2008) (" since the plaintiff accepted the benefits of the stipulation of settlement, and substantially complied with its terms for almost two years, he ratified the stipulation by his conduct."); Boyer v. Whitestone Lumber Corp., 23 Misc 3d 1114(A), 2009 WL 1067395 (Sup. Ct. Nassau Co. March 12, 2009) ("Even assuming that duress and/or unconscionability existed, the record establishes that Keith effectively ratified the agreement about which he now complains"); Webb v. Webb, 18 Misc 3d 822, 828, 851 NYS2d 828, 833 (Sup. Ct. Chenango Co. 2007) (when defendant signed the second modification, "she expressly reaffirmed and confirmed both the original agreement and the first modification."); Werther v. Werther, 9 Misc 3d 1114(A), 808 NYS2d 921, 2005 WL 2384722 (Sup. Ct. Nassau Co. Sept. 2, 2005) ("The law is well settled that a party seeking to repudiate a contract procured by duress and overreaching must act promptly lest he be deemed to have elected to affirm it."). Therefore, even if there were problems with the First Agreement — which the Court does not find — they would be mooted by the parties' incorporation of the terms of the First Agreement into the Second Agreement.

The Agreements Are Not Unconscionable

As her second attempt to avoid the bargain that she made, plaintiff argues that the Agreements are unconscionable and the product of overreaching by defendant. Plaintiff has a heavy burden to meet; with regard to separation agreements, it is well established in New York that "judicial review of separation agreements is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own." Ricca, 57 AD3d 868, 870 NYS2d at 420 (affirming grant of summary judgment). Indeed, it is well-settled that a "party seeking to rescind a separation agreement . . . has the burden of showing that the agreement was the result of fraud, duress, or overreaching or that its terms were unconscionable." Rubin v. Rubin, 33 AD3d 983, 985, 823 NYS2d 218, 220 (2d Dept. 2006). That is, an agreement "will not be overturned merely because it was improvident, not the most advantageous to the dissatisfied party, or because a party had a change of heart." Ricca, 57 AD3d 868, 870 NYS2d at 420.

Plaintiff here argues that the Agreements were unfair and unconscionable, because she will receive no maintenance thereunder, nor any equitable distribution other than a small sum for the marital home[FN3] ($42,000 in the First Agreement, increased to $50,000 in the Second Agreement). She claims that she did not know the value of defendant's assets and business holdings, because the parties never valued these items, or otherwise did any other financial disclosure. Failure to do financial disclosure is not fatal, however. Strong v. Dubin, 48 AD3d 232, 851 NYS2d 428 (1st Dept. 2008) ("A failure to disclose financial matters, by itself, is not sufficient to vitiate a prenuptial agreement."). See also Panossian v. Panossian, 172 AD2d 811, 569 NYS2d 182 (2d Dept. 1991). Moreover, the First Agreement plainly states that the parties "have made a full and fair disclosure to the other," and that they are each "fully acquainted with, and aware of, the financial circumstances and the income, assets and liabilities of his or her spouse." It goes on to state that the parties have considered all of the factors involved, consent to the provisions of the First Agreement, and understand that they had the right to pursue discovery, [*4]which they waived. There is nothing inherently wrong with the choice the parties made to forego discovery. See generally Brassey v. Brassey, 154 AD2d 293, 546 NYS2d 370 (1st Dept. 1989).

The fact that plaintiff is not entitled to any equitable distribution (aside from the payment for the marital home) or maintenance under the Agreements does not make the Agreements unconscionable. "An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense. However, an agreement is not unconscionable merely because, in retrospect, some of its provisions were improvident or one-sided." Schultz v. Schultz,

58 AD3d 616, 871 NYS2d 636 (2d Dept. 2009). At the time that the parties entered into both Agreements, both parties were fully employed, and self-supporting. Defendant paid all of the household expenses, and most of the expenses for the children. In her own words, plaintiff stated that she "occasionally would buy food, sundries, take the children away on vacation, buy my own clothing" with her earnings. In entering into the Agreements, it is clear that plaintiff expected that most of her earnings after a divorce would go to her own expenses. This is not an unreasonable deal to make. Nor is it unreasonable that under the First Agreement, plaintiff was to contribute $1,000 per month towards the upkeep of the marital home, and that all other shelter-related expenses (including telephone and cable), as well as all of plaintiff's health insurance expenses, and all of her transportation-related expenses (except gas) would be borne by defendant. Further, it is not unreasonable that in the Second Agreement, the parties agreed that although plaintiff had not actually contributed her $1,000 per month (for approximately 7 years, at $12,000 per year) as required by the First Agreement, defendant waived his right to collect the arrears. That means that for all that time, defendant was the sole party supporting the family. It is also not unreasonable that the parties agreed, in the Second Agreement, that defendant would be the sole support for the children, including "their possible college education without contribution" by plaintiff.

Without parsing through the rest of the Agreements, it is clear that the parties in this action made reasonable, logical choices about how they would order their finances. Plaintiff made a bargain in which, in exchange for giving up maintenance and equitable distribution (aside from $50,000 cash), she did not have to pay anything towards any of her family's shelter, health or car expenses (aside from gas) for seven years. Nor, under the Second Agreement, does plaintiff have to pay anything going forward to support her children, through college. While this might not be the choice that some people would make, it hardly "shocks the conscience" such that it must be set aside. See Garner v. Garner, 46 AD3d 1239, 848 NYS2d 741 (3rd Dept. 2007).[FN4]

Plaintiff also claims that because she was not represented by counsel, there is a rebuttable presumption of overreaching. This Court disagrees. "The fact that the plaintiff was not represented by independent counsel when the separation agreement was executed does not, without more, establish overreaching or require automatic nullification of the agreement. This is [*5]especially true where, as here, the plaintiff knew that the defendant had benefitted from consulting with counsel during the negotiation process, was informed of his right to retain his own counsel, and the parties' mediator, who drafted the agreement, repeatedly urged him to do so." Ricca v. Ricca, 57 AD3d 868, 869, 870 NYS2d 419, 420 (2d Dept 2008).

Although the Agreements Are Enforceable,

Plaintiff Is Entitled to Maintenance and Attorneys' Fees

Although the Agreements do not allow for any maintenance to plaintiff (because she was earning an adequate salary and capable of supporting herself), at present, plaintiff is unable to support herself or work at all. She has just had a diagnosis of cancer and has had major spinal surgery, and has further medical procedures looming. At this time, it would be unconscionable for defendant, her husband of 22 years, to fail to support her. Werther v. Werther, 9 Misc 3d 1114(A), 808 NYS2d 921, 2005 WL 2384722 (Sup. Ct. Nassau Co. Sept. 2, 2005) (waiver of maintenance not reasonable in view of disparate financial circumstances of parties). See also Cron v. Cron, 8 AD3d 186, 780 NYS2d 121 (1st Dept. 2004) (even where maintenance waiver was not unconscionable, Court found that housing provision was inequitable, and ordered husband to increase the amount he would provide for housing from that set forth in the parties' agreement — from a cap of $200,000 to $2 million). Nor can the Court allow plaintiff to become a public charge. Kessler v. Kessler, 33 AD3d 42, 46, 818 NYS2d 571, 575 (2d Dept. 2006). Accordingly, the Court finds that the $3,500 per month that plaintiff requests is reasonable at this juncture, when the Court does not have any of defendant's financial information before it, and in light of plaintiff's listed expenses.[FN5] See 22 NYCRR § 202.16(k). Once the Court has received defendant's Statement of Net Worth, and has had the opportunity to consider all of the circumstances, it may modify this temporary award. Defendant shall also continue to provide medical insurance for plaintiff and the children.

Plaintiff's request for attorneys' fees is granted to the extent of awarding her $10,000 in counsel fees. Without this sum, she would be unable to proceed with this matrimonial action. See Kessler, 33 AD3d at 48, 818 NYS2d at 576.

As the parties have appeared in Court for their Preliminary Conference on September 11, 2009, the dates set forth at that conference remain in place. The foregoing constitutes the decision and order of the Court.

Dated:White Plains, New York

September 16, 2009

____________________________

Hon. Linda S. Jamieson

Justice of the Supreme Court

To:

Steven Lewis, Esq. [*6]

Stephens Baroni Reilly & Lewis

Attorneys for Plaintiff

175 Main Street, Suite 800

White Plains, NY 10601

Farruto, Berman & Slater

Attorneys for Defendant

1250 Central Park Avenue

Yonkers, NY 10704 Footnotes

Footnote 1:To the extent that the child support provision of the First Agreement is inadequate, it is rectified by the child support provision of the Second Agreement. Moreover, such an invalid section of an agreement is not enough to invalidate the whole agreement; rather, the Court can sever the provision and let the rest of the agreement stand. Cron v. Cron, 8 AD3d 186, 187, 780 NYS2d 121, 122-123 (1st Dept. 2004) ("While the agreement's child support provisions are concededly invalid, its remaining provisions, which are expressly severable, are not therefore subject to recission but must be separately assessed."). The First Agreement contains what is essentially a severability clause.

Footnote 2:While plaintiff states in her Affidavit that she has "absolutely no recollection of ever signing [the Second Agreement] in front of a notary," she certainly does not claim that her two signatures on the Second Agreement are not actually hers. As plaintiff has not bothered to submit any evidence to the Court to show that the notarization is invalid, the Court does not grant any credence to this claim.

Footnote 3:The marital home is titled to defendant alone, and was purchased with at least some of defendant's separate property.

Footnote 4:The Court notes that "[a] motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face." O'Malley v. O'Malley, 41 AD3d 449, 836 NYS2d 706 (2d Dept. 2007).

Footnote 5:While plaintiff is presently living with family members, such that certain of her housing expenses listed on her Statement of Net Worth are inapplicable, other expenses listed therein are realistic.