Massari v Massari

[*1] Massari v Massari 2017 NY Slip Op 50412(U) Decided on April 4, 2017 Supreme Court, Westchester County Grossman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2017
Supreme Court, Westchester County

Emma Massari, Plaintiff,

against

Michael A. Massari, Defendant.



1483/2014



The Penichet Firm

Attorneys for Plaintiff

140 Grand Street

White Plains, New York 10601

Via Fax: 914-997-8155

Harold, Salant, Strassfield & Spielberg

Attorneys for Defendant

81 Main Street

White Plains, New York 10601

Via Fax: 914-683-1279
Victor G. Grossman, J.

This is an action for divorce and a challenge to a Separation Agreement. The grounds for divorce are not disputed. The issue before the Court arises from the Complaint's Fourth Cause of Action, seeking to rescind a Separation Agreement and subsequent Modification Agreement on the grounds of unconscionability.[FN1]

Specifically, Plaintiff's Complaint, filed on March 3, 2014, contains four causes of action. She seeks a divorce based upon the irretrievable breakdown of the marriage pursuant to DRL §170(7), which Defendant admits in his Answer. In the Second Cause of Action, she seeks to vacate, rescind or modify the provisions of the parties' two "marital agreements upon the grounds [*2]of fraud, duress and coercion exercised by Defendant upon Plaintiff." The Third Cause of Action seeks the same relief based upon the ground of Defendant's breach of fiduciary duties owed to Plaintiff. The Fourth Cause of Action seeks the same relief based upon the grounds that the two marital agreements were not fair and reasonable when made, and would be unconscionable at the time of the entry of Judgment.

Defendant moved to dismiss the Second, Third, and Fourth Causes of Action. Plaintiff cross-moved to set aside the July 8, 2012 Separation Agreement, and the September 8, 2012 Modification Agreement. By Amended Decision and Order, dated June 18, 2015, the Hon. Lawrence H. Ecker, J.S.C., granted Defendant's motion to the extent of dismissing the Second and Third Causes of Action, and sustained the Fourth Cause of Action to the extent of ordering a hearing, and declaring:

Insofar as the fourth cause of action, predicated upon a claim that the Agreements were not fair and reasonable, and therefor would be unconscionable at the time of entry of the final judgment, for the reasons stated, supra, the court declines to sustain this cause of action relative to the provisions that equitably distributed the parties' marital property. However, the court is concerned with the mutual waiver of maintenance agreed to by the parties (Deft. Ex. D, Art. III[b]), wherein plaintiff represents that she is "currently in good health and wholly self-supporting." This may now be questionable, given the factual discrepancies raised by the parties in their submissions. Therefore, the court determines that a hearing must be conducted to ascertain the facts and circumstances leading up to the mutual waiver of maintenance by the parties. This inquiry shall be limited to this issue alone, in that the parties in the Agreements provided that the covenants arrived at were severable and capable of separate enforcement irrespective of any other rights and obligations. In this regard, the Separate Agreement provides, "[E]ach of the respective rights and obligations of the Parties under this Agreement shall be deemed independent, and may be enforced independently of any of the other rights and obligations set forth herein." [Article XXVI(a)]. Thus, in recognition of the public policy enunciated in DRL §236[B][3], the court finds that there are factual issues that need to be heard, limited to the enforcement of the maintenance waiver entered into by plaintiff, and that this task can be accomplished without disturbing the provisions of the Agreements relative to equitable distribution...This Court finds that plaintiff has raised sufficient issues of fact, such that a hearing needs to be conducted, where evidence will be taken regarding the facts and circumstances leading up to her agreement to waive maintenance. This inquiry, limited to the maintenance waiver, will perforce need to include testimony and other evidence relative to her mental and physical state at that time, together with the benefits she received pursuant to the Separation Agreement, and the Modification Agreement. The issue to be litigated is whether a competent person, i.e., plaintiff, given the circumstances at the time of the execution of the Agreements, when viewed almost three years later, would have consented to the provision waiving maintenance."

(Amended Decision and Order at 9-11).

The parties married on September 7, 1974. They have two grown daughters and two young grandchildren. Neither party graduated from high school, and they had what might be [*3]considered a "traditional" marriage. During the marriage, Defendant was employed as a washer/dryer technician, and Plaintiff was a homemaker, who now works part-time as a receptionist in a hair salon. In or about 2005, Plaintiff was diagnosed with breast cancer, underwent a dual mastectomy and reconstructive surgery, and endured six months of chemotherapy and radiation. She later had a hysterectomy.

On November 6, 2011, an event, which should have been a joyful one, turned into a nightmare, and consequently, transformed the parties' lives. The parties' newborn grandson, and his mother, their daughter (Michelle), were returning from the hospital. At the daughter's residence, their son-in-law was feeding the older grandchild, who was seated in a highchair and resisting her lunch. Defendant offered some advice about the feeding of that older child, to which his son-in-law took offense. Harsher, confrontational tones and words were exchanged, and Defendant struck his son-in-law, as the child remained between them in the highchair. They fought for a few minutes. Plaintiff tried to intervene and was struck several times in the process. Eventually, order was restored, and, about 10 to 15 minutes later, Defendant left his daughter's home with his second, younger daughter (Nicole). As of the time of trial, since that night, Defendant had not seen his older daughter, his son-in-law, or his grandchildren.

The emotional scars lingered. Plaintiff was upset and anxious. She cried for days. She was prescribed Xanax, and she took this medication during the parties' mediation efforts, though she never re-filled the prescription. By February 2012, Defendant decided he wanted a divorce, and Plaintiff did not object. He consulted an attorney and was referred to a mediator, Melissa Goodstein, Esq., on the belief that a mediated outcome would be less costly than a divorce trial. Plaintiff assented to the choice of Ms. Goodstein, and the parties entered into a mediation agreement with her.[FN2] Ms. Goodstein provided mediation services between March 2012 and September 2012. In July 2012, after approximately six or eight sessions, the parties executed a Separation Agreement. Then, in September 2012, they executed a Modification Agreement.

The July 9, 2012 Agreement provided, inter alia:

1. A waiver of maintenance;

2. Plaintiff would remain covered under Defendant's health insurance plan until a Judgment of Divorce was entered. Plaintiff would be responsible for her deductibles, co-pays, and uncovered expenses.

3. The marital residence would be sold, and the net proceeds equally divided; Plaintiff would receive an additional $76,706.00 from Defendant's share.

4. Defendant retains a timeshare valued at $17,000.00.

5. Defendant retains a 2006 Nissan, subject to Plaintiff's right to use it so long as she resides in the marital residence.

6. Joint bank accounts shall be divided equally, and the safe deposit box shall be closed.

7. Each party waived any interest in the deferred compensation, or other benefit plans of the other party.

8. Defendant shall pay a distributive award to Plaintiff of $90,706.00.

9. Each party would retain the jewelry in their possession.

The September 2012 Modification enabled Defendant to purchase Plaintiff's interest in the marital residence by refinancing the existing mortgage. All retirement funds were distributed equitably with Defendant transferring $22,214.00 from his IRA to Plaintiff's IRA, and QDRO's would be utilized to effect the distribution of Defendant's 401-k, and interest in his Local 966 Pension Fund. Ultimately, the marital estate was divided equally with each party receiving approximately $300,000.00.

The Separation Agreement and Modification Agreement, contain the following provisions:

1. The "negotiations were in good faith and that each party had fully disclosed all information necessary or requested in order to resolve the parties' property and support rights fairly";

2. Reliance upon financial information exchanged by the parties;

3. Plaintiff acknowledged that she entered "into the Agreement freely and voluntarily," and that she had had the "full and complete opportunity to ascertain and weigh, to [her] complete satisfaction, all of the facts and circumstances likely to influence [her] judgment, and they have obtained legal advice independently of each other," and that "the Agreement constituted fair and adequate settlement";

4. The Agreement is fair and not the result of any fraud, duress or undue influence;

5. No independent investigation has been made by the mediator of the character and value of the parties' property, and Plaintiff desires to make the Agreement without further independent investigation and review by separate independent counsel;

6. They have carefully read the Agreement and are aware of its contents and effect, and they fully understand all of the terms, covenants, and conditions of the Modification;

7. They entered into the Agreement of "their own free will and without force, coercion, or duress of whatever nature"; and

8. The Modification Agreement acknowledges the parties chose not to consult with counsel despite being advised to do so;

Notably, in the Modification Agreement, except as modified, the parties "expressly ratify and reaffirm the validity of the Agreement, which shall continue in full force and effect as to all of its terms and conditions."

Despite her acknowledgments and affirmative assurances that affect the fundamental fairness of the Agreement and Modification, Plaintiff now asserts a contrary position. Plaintiff now claims that the disclosure was incomplete because Defendant did not immediately provide certain pension information or information about cash in a safe or a safe deposit box.[FN3] She [*4]claims Defendant threatened her, and she was scared for her family's safety, though Justice Ecker rejected her claims of duress. She claims she could not seek independent counsel because she could not access funds in a joint account without Defendant's consent, and she had no money of her own. She did not ask Defendant for money to hire an attorney. She was also taking Xanax during the mediation process, which affected her ability to concentrate. She did not feel comfortable leaving the marital home during the mediation process, as she feared for her younger — albeit 33-year-old — daughter's safety, who remained in the home with Defendant despite what Plaintiff characterized as daily threats.[FN4] She claimed she was very scared and upset in the months that followed the November 6, 2011 incident, wondering what would happen to her family if she did not do what Defendant wanted. This fear was amplified by statements attributed to Defendant that "things better go my way," and "I'm not done with George [son-in-law] yet." She claims she asked for pension information, but not for safe deposit box information, because she was afraid.

According to Plaintiff, the mediation process was fraught with problems. Neither party produced Statements of Net Worth although the agreement to mediate required full disclosure as requested by the mediator or by either party. Yet, Plaintiff did not insist Defendant do so as she believed he would be fair and he provided financial information. The pension, paying a nominal amount, was not disclosed prior to the July 12th Agreement, but it was included in the September modification. [FN5] Plaintiff did not ask about it, claiming she was uncertain Defendant had a pension and she was afraid to ask.

Prior to the July Agreement, Plaintiff requested maintenance. The mediator advised her that she was entitled to it. Defendant opposed to paying Plaintiff maintenance and to giving her one half of his 401-k. According to Plaintiff, Defendant was willing to do one or the other, but not both. The parties discussed the issue of maintenance, and Plaintiff told the mediator she thought it was "unfair". She claimed she was unaware she was entitled to seek and obtain the advice of counsel, despite the Agreement's express language that states, in part:

"The Parties acknowledge that the terms of this Agreement have been mediated through the efforts of Melissa Goodstein, Esq. The Parties acknowledge that they have each had the opportunity, and have been advised by their mediator on several occasions to obtain independent counsel of their own selection prior to entering into this Agreement. The Parties acknowledge that they have not consulted with nor retained an attorney with respect to this Agreement although they have strongly been advised to do so. They agree that this should in no way affect the legality or enforceability of this Agreement and that they have each chosen not to use an attorney on their own accord."

(Article XV, §3)

At the time she signed the Agreement, Plaintiff believed she should receive maintenance. The surrender of a viable maintenance claim as an asset, without anything in return, is troubling, and may, or may not, be a form of overreaching. Schultz v. Schultz, 58 AD3d 616 (2nd Dept. 2009); Morad v. Morad, 27 AD3d 626 (2nd Dept. 2006). Plaintiff claimed she signed the Agreement because the alternative was to remain married, in spite of her need to separate from Defendant and leave the marital home — although she did not move out until September 2012. Also, during the mediation process, Plaintiff knew she would lose her health insurance upon divorce, and given her health history, health insurance was vital to her. Therefore, by signing the Separation Agreement, as an alternative to divorce, Plaintiff would continue to be covered under Defendant's health insurance plan. Defendant's refusal to pay Plaintiff maintenance prevented her from being able to afford health insurance; thus, she felt she had to agree. Of course, had she not signed the Agreement, the parties would have remained married, and Plaintiff would have had health coverage. In addition, Defendant told Plaintiff that he would not divorce her to enable her to remain on his health insurance. The commencement of the instant action, however, accelerated their divorce and her loss of health insurance coverage. Under both agreements, Plaintiff's share of the marital estate totals approximately $300,000.00, an amount identical to Defendant.

At the time of trial, Plaintiff was 61 years old and Defendant was 63 years old. Each party offered, and the Court received in evidence, their respective Social Security Statement. Defendant can start receiving benefits immediately in the amount of $2,013.00/month. If he waits until age 66, the benefit would be $2,405.00/month, and the amount would increase to $3,194.00/month at age 70. [FN6] At age 62, Plaintiff will receive $200.00/month. That amount will increase to $372.00/month at age 66, and $622.00/month at age 70.[FN7] At age 66, in the event the divorce is granted, Plaintiff would be entitled to receive benefits raising her total Social Security payment to an amount equal to one-half of Defendant's payment. It is unknown whether either or both of the parties, or the mediator, raised this issue in the mediation sessions, but certainly the opportunity to do so existed.[FN8]

To the Court, Plaintiff made a purposeful choice to forgo maintenance in exchange for continued health insurance, and she testified to the reasons for that choice. One of the factors raised by Justice Ecker in his Decision recognized the need to include testimony of Plaintiff's physical and mental state, but such testimony by a medical or psychological practitioner was [*5]absent.[FN9] Consequently, the Court has no evidence to conclude Plaintiff was physically or emotionally incapable of assessing the factors necessary to reach a decision in her best interests. Her cancer history and treatment give rise to the need for insurance coverage. The Court is also aware that some cancer patients undergo mental changes as a result of chemotherapy, which affect their thought processes, thought clarity, and task completion, but there was no testimony, beyond Plaintiff's statements, of such a condition, let alone a condition that continued for many years after the treatments ended. And, the Court will not speculate. Similarly, the events of November 6, 2011 may have created, or increased, a sense of fear of Defendant and a perceived need to escape, but there is no testimony to demonstrate the impact on her mental or emotional state on her decision-making. Defendant's demeanor may have been brusque, boorish, controlling and confrontational, but it did not rise to the level of duress, according to Justice Ecker, and Plaintiff has not demonstrated otherwise. Moreover, her claim of "no way out" is contradicted by the facts. Despite her years as a traditional homemaker, Plaintiff paid the household bills, and had access to the joint checking account to obtain funds to consult with counsel.[FN10] The Court is also troubled by the denials of the acknowledgments and representations supporting the fairness of the Agreements, inherent in Plaintiff's trial testimony. In short, everything was fine for her when there was an opportunity to obtain a benefit of a separation, one-half of the marital estate, and continued health insurance, but now, nothing is fine without the maintenance. These acknowledgments and recitals rebut her claims now being made. See Kazimierski v. Weiss, 252 AD2d 481 (2nd Dept. 1988). A person is bound to read and know what they sign. See Ackerman v. Ackerman, 120 AD3d 1279 (2nd Dept. 2014); Rosenberger v. Rosenberger, 63 AD3d 898 (2nd Dept. 2009). More important, the Court must glean the parties' intent from the words used, not from external facts, issues, or events. Agreements would be without significance if they were negated by after-the-fact claims of not reading, or not understanding, the writing.

Plaintiff represented that she is "currently in good health and wholly self-supporting." This statement is made several years after Plaintiff underwent surgery, chemotherapy and radiation therapy for breast cancer. To the extent her family medical history is a factor, this statement was made approximately one year after her sister died of cancer. By the statement in the Agreement, the Court is asked to accept the description of Plaintiff's health status as accurate. Similarly, her financial condition reflects a person earning approximately $1,000.00/month who was financially dependent on her husband's income throughout the marriage, and is accepting a future without an income contribution from Defendant. The Court is also asked to accept the description of Plaintiff's financial condition as accurate. Perhaps, Plaintiff planned to live with her daughter, and thereby reduce, or eliminate, her living expenses. Perhaps she believed she could succeed on her share of the marital estate until Social Security payments commenced. Perhaps she was optimistic about her health. Perhaps she purchased a winning lottery ticket. [*6]Perhaps she has a multi-year period of total remission. The Court has none of this information and cannot, and will not, speculate as to its existence as it is governed by the Agreement. As stated previously, there is no evidence to support Plaintiff's claimed physical and mental state at the time of the Agreement. Warren v. Rabinowitz, 228 AD2d 492, 493 (2nd Dept. 1996). For purposes of the Agreement and the Modification, the Court cannot conclude the Agreement was unconscionable. Hume v. U.S., 132 U.S. 406 (1889); Christian v. Christian, 42 NY2d 63 (1977).

Plaintiff's waiver of maintenance reflects a choice she made for reasons believed to be in her best interests. Rauso v. Rauso, 73 AD3d 699 (2nd Dept. 2010); Schultz v. Schultz, supra. Her recollection of the discussions of maintenance with Defendant, and the mediator, reflects her understanding of the issue and that which the law provided. She also testified to what she believed was the unfairness of Defendant's position and discussed that unfairness with the mediator. Significantly, she was aware of the opportunity to have it reviewed, and her failure to do so does neither nullifies the Agreement, nor renders it unconscionable. Forsberg v. Forsberg, 219 AD2d 615 (2nd Dept. 1995); see also In re: Barabash, 84 AD3d 1363 (2nd Dept. 2011). While the absence of counsel is a "significant factor" in determining whether the Agreement was freely entered into (Kavanagh v. Kavanagh, 2 AD3d 688 [2nd Dept. 1990], citing Levine v. Levine, 56 NY2d 42, 48 [1982]), here, the mediator advised both parties to obtain independent counsel. See Liguori v. Liguori, 106 AD3d 1249 (2nd Dept. 2013); see also Ruparelia v. Ruparelia, 2016 NY Slip Op. 01377 (3rd Dept. 2016). The parties' failure to heed that advice is not fatal to the Agreement. Korngold v. Korngold, 26 AD3d 358 (2nd Dept. 2006); Brennan-Duffy v. Duffy, 22 AD3d 699 (2nd Dept. 2005). Furthermore, Plaintiff's claimed inability to retain counsel does not provide her relief. Mauro v. Mauro, 148 AD2d 684 (2nd Dept. 1989).

Plaintiff accepted the benefits of the Agreement and continues to do so following the commencement of the action two years later. Beutel v. Beutel, 55 NY2d 957, 958 (1982); Ricca v. Ricca, 57 AD3d 868 (2nd Dept. 2008); Brennan v. Brennan, 305 AD2d 524, 525 (2nd Dept. 2003). Morever, the Modification Agreement executed in September 2012, two months after the original, contains an express ratification of the validity of the original. Franz v. Franz, 107 AD2d 1060 (4th Dept. 1985). Defendant's failure of generosity on the issue of maintenance does not render the Agreement unconscionable. O'Hanlon v. O'Hanlon, 114 AD3d 915 (2nd Dept. 2014); Wile v. Wile, 100 AD2d 932 (2nd Dept. 1984); Gorman v. Gorman, 87 AD2d 674 (3rd Dept. 1982).

Simply put, a waiver of maintenance does not render an agreement unconscionable. In Smith v. Smith, 188 AD2d 1004, 1006 (4th Dept. 1992), the Fourth Department examined a settlement agreement, which like the instant Agreement, reflected an intent "to divide the marital assets evenly," and a waiver of maintenance. Such a division included a lump sum distributive payment of $94,000 to the plaintiff-wife. The Supreme Court set aside the "no maintenance" provision as unconscionable, but the Appellate Division reversed. In doing so, the Fourth Department relied on Plaintiff's recited representations, including the "current and prospective financial circumstances of the parties," and that "she was capable of self-support," and, therefore, not in need of permanent maintenance. In light of the distributive award, child support, life insurance, health insurance and other benefits, the defendant's requirement that the plaintiff waive maintenance in Smith, was not unconscionable. The Fourth Department observed that the waiver of maintenance did not render the plaintiff incapable of self-support or likely to become a [*7]public charge in violation of General Obligations Law §5-311. Further, the court relied on DRL §236(B)(3), and stated "a provision waiving maintenance is subject only to the requirements that its terms be fair and reasonable when the agreement was made and not unconscionable at the time of final judgment." Id. at 1005.

The instant action varies from Smith in one important respect. There is a flow of income to the Smith wife in the form of child support, but here, in the absence of a flow of income, there is continued health insurance, but only until a Judgment of Divorce is entered.

In Cron v. Cron, 8 AD3d 186 (1st Dept. 2004), the waiver of maintenance in a pre-nuptial agreement did not place the defendant in danger of becoming a public charge, and it was not unconscionable despite the defendant's being out of the work force for ten years at the plaintiff's insistence. The Cron Court increased the defendant's housing allowance to two million dollars where the plaintiff earned four million dollars per year and had assets in excess of thirty million dollars, warranting equity's intervention to provide appropriate housing for the children.

The First Department relied on Cron in Barocas v. Barocas, 94 AD3d 551 (1st Dept. 2012), when it affirmed the need for a hearing to determine if the maintenance waiver was unconscionable, based on the possibility that, without spousal support, the defendant would become a public charge. In dissent, two Justices went further, concluding an issue of fact existed as to whether the property waiver was also unconscionable.

In contrast to Cron, the Third Department approved an award of temporary maintenance and recognized the likelihood of permanent maintenance in Hadi v. Hadi, 34 AD3d 1153 (3rd Dept. 2006). There, a post-nuptial agreement terminated support at the commencement of a matrimonial action, distributed no marital property or bank accounts, and contained other infirmities. The court noted the plaintiff's health problems, which left her unable to support herself, and a monthly income below the applicable federal poverty guidelines, rendered her likely to become a public charge. The court permitted an award of maintenance despite the post-nuptial agreement. See GOL §5-311; Bloomfield v. Bloomfield, 97 NY2d 188, 194 (2001); Curran v. Curran, 169 AD2d 975, 976 (3d Dept. 1991).

Here, the parties' freedom to enter into an enforceable agreement is conditioned on the statutory requirements that such agreement is "subject to the provisions of Section 5-311 of the General Obligations Law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment." DRL §236(B)(3). The Court heard the parties' testimony and found the agreement was fair and reasonable at the time of the making. That finding is consistent with the requirements of Christian v. Christian, 42 NY2d 63, 72-73 (1977), where the threshold focus is on the procedural components forming the agreement. See also Levine v. Levine, 56 NY2d 42, 47 (1982). Insofar as DRL §236(B)(3) requires the court to conclude the terms of the agreement "are not unconscionable at the time of entry of final judgment," a separate examination is required — the court must consider changes to a spouse's economic status including the possibility that a spouse may become a public charge. Certainly, a Judgment incorporating an Agreement, which deprives a party of income after a forty-year-marriage, raises the possibility of unconscionability.

As Justice Ecker observed, the severability of the maintenance provision in the Agreement allows for the preservation of the remaining provisions. Consequently, the Court need not disturb the provisions which equally distribute the marital estate. The Court has no [*8]intention of re-writing the Agreement. Cappello v. Cappello, 286 AD2d 360 (2d Dept. 2001). It is unnecessary to do so. The Complaint seeks not only to set aside the Agreement but also an award of non-durational spousal maintenance to the Plaintiff. The trial testimony included some evidence of the parties' financial status and current Statements of Net Worth. Plaintiff's Statement of Net Worth reflects a gross income of $11,352.00 per year ($10,526.00 net) from her part-time employment as a receptionist in a hair salon. The interest income on her 401-k funds is unknown. Her claimed expenses are $3,414.00/month, inclusive of a claimed housing expense of $1,500.00/month, without any indication of payments to her daughter. Her limited housing costs are due to her residing in her daughter's basement apartment. Once the Judgment is entered, Plaintiff will have an additional — albeit unknown — expense for health insurance, which will be paid from her distributive award, depleting it rapidly.[FN11] The 2016 federal poverty guidelines for a single person household is $11,880.00. In 2017, that figure rises to $12,060.00.[FN12] Defendant's income is $76,608.00/year, exclusive of overtime or a second job, but consistent with his income during the marriage, which provided the parties' marital standard of living. His monthly gross income is $6,099.58 (net is $4,019.94). He also has a significant housing cost of $2,024.00 inclusive of mortgage and taxes, arising from his refinance of the marital residence to purchase Plaintiff's interest. His Statement of Net Worth indicates a monthly condominium cost, which may assist the parties' younger daughter, or may be a timeshare expense, but it is not otherwise identified. He can still contribute $1,039.00/month to his 401-k and he budgets $208.00/month for vacations. While marital assets were distributed equitably, Defendant remains in a position to significantly improve his comfortable standard of living. The Court concludes there is a manifest unfairness in enabling Defendant to maintain a comfortable standard of living, while relegating Plaintiff to a poverty level lifestyle. Christian v. Christian, supra. Accordingly, the Court awards maintenance to the Plaintiff in the amount of $1,000.00 per month, commencing on the entry of Judgment herein and continuing until Defendant reaches the age of 66 and he is eligible for full Social Security benefits, at which time Plaintiff will be eligible for her full Social Security benefits based on her contributions, and her marriage to Defendant. Consequently, Defendant shall continue to maintain his life insurance as set forth in Article XIII of the Agreement.

Lastly, the action before the court is one to obtain a divorce pursuant to DRL §170(7). The additional relief sought in a plenary action to obtain the rescission, modification, or nullification of the parties' Agreement is not a matrimonial action for which counsel fees can be awarded. Fine v. Fine, 26 AD3d 406 (2d Dept. 2006); Matter of Drake v. Drake, 94 AD2d 768 (2d Dept. 1983). Accordingly, for the divorce pursuant to DRL §170(7), for which there was no opposition, the Court awards Plaintiff the sum of $1,000.00 in counsel fees.

Plaintiff's attorney shall settle the Findings, Conclusions of Law, and Judgment in accordance with this Decision & Order within 30 days of its service upon Defendant's counsel [*9]with notice of entry. Any proposed counter-judgment shall be submitted in accordance with 22 NYCRR §202.48(c)(2). The parties are directed to retrieve their trial notebooks within sixty (60) days of this Decision and Order, or they will be destroyed.

The foregoing constitutes the Decision and Order of the Court.

Dated: Apri 4, 2017

Poughkeepsie, New York 12601

E N T E R:

_______________________________

HON. VICTOR G. GROSSMAN, J.S.C.

Footnotes

Footnote 1:There are two separate documents executed at two different times. For the sake of convenience, the documents are referred to in the singular as the "Agreement" herein, unless separate treatment is required.

Footnote 2:In that agreement, each party agreed not to call Ms. Goodstein as a witness, or require the production of any writings, records, documents, or notes of Ms. Goodstein. Each party also acknowledged their agreement not to call Ms. Goodstein as a witness was designed, in part "to induce Mediator [Goodstein] to serve as the facilitator of the negotiations."

Footnote 3:Plaintiff did not have access to the safe. She claimed Defendant kept his "papers and things and money" in the safe, but she never saw the cash. During the mediation process, Plaintiff claimed that Defendant stated different amounts at different times were in the safe. She also claimed the funds were to be used for Nicole's wedding. With respect to the safe deposit box, Plaintiff claimed there was $25,000.00 - $30,000.00 in the box, but she never counted it. She also said neither party raised the issue in mediation. She claimed she was afraid to do so, due to Defendant's threats. Defendant testified the money in the safe deposit box was given to Nicole, who was purchasing and setting up an apartment.

Footnote 4:She claims she never called the police between November 2011 and July 2012 because she was afraid it would "make matters worse."

Footnote 5:This pension pays approximately $150.00/month in pay status. Plaintiff will receive about $75.00/month.

Footnote 6:These amounts are approximate.

Footnote 7:These amounts are approximate.

Footnote 8:The amount of the benefits projected in 2012 may have been different.

Footnote 9:See Weinstock v. Weinstock, 167 AD2d 394 (2nd Dept. 1990), and the reliance of the court on the testimony of the wife's psychiatrist.

Footnote 10:One would think that her daughters, whom she saw regularly, would have assisted.

Footnote 11:Given Plaintiff's health history, it is unknown if she will be able to obtain insurance, even if she has "access" to it, especially with the proposed radical changes to the Affordable Care Act.

Footnote 12:See https://aspe.hhs.gov./poverty guidelines. The Court takes judicial notice of this information.