Einhorn v Einhorn

Annotate this Case

[*1] Einhorn v Einhorn 2009 NY Slip Op 51941(U) [24 Misc 3d 1250(A)] Decided on September 17, 2009 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2009
Supreme Court, Kings County

Hersh Einhorn, Plaintiff(s),

against

Sandra Einhorn, Defendant(s).



54287/08



Attorney for the Plaintiff

Mark M. Holtzer, Esq.

Snitow Kanfer Holtzer & Millus, LLP

575 Lexington Avenue

New York, New York 10022

Attorney for the Defendant

Abe H. Konstam, Esq.

Mallow Konstam & Hager, LLP

321 Broadway

New York, New York 10007

Jeffrey S. Sunshine, J.



Upon the foregoing papers, plaintiff Hersh Einhorn moves for an order: (1) enforcing the terms of the parties' Post-Nuptial Agreement, signed on March 11, 2004 (the Agreement); (2) directing defendant Sandra Einhorn to cooperate with the sale of the former marital residence as set forth in the Agreement; and (3) pursuant to 22 NYCRR § 202.7(f), restraining and enjoining defendant from transferring, selling, mortgaging, hypothecating, encumbering, or in any manner disposing of any and all marital assets, specifically, the parties' marital residence, located in Brooklyn, New York. Defendant cross moves for an order: (1) granting her exclusive occupancy of the former marital residence (except the basement portion); (2) requiring plaintiff to pay her pendente lite child support and tuition [*2]for the children; (3) requiring plaintiff to pay her pendente lite maintenance; (4) requiring plaintiff to pay her arrears in child support; (5) requiring plaintiff to pay her arrears in maintenance; (6) requiring plaintiff to reimburse her for orthodontic bills in the sum of $5,800; (7) requiring plaintiff to pay Dr. Graziano $3,000 for orthodontic bills presently due; (8) requiring plaintiff to continue to pay for life insurance and medical insurance; (9) requiring plaintiff to pay for unreimbursed medical expenses; (10) requiring plaintiff to continue to pay the mortgage and utilities on the marital residence and the cell phones bills for her and the children; (11) vacating the Agreement; and (12) awarding her counsel fees.

Facts and Procedural Background

The parties were married in Kings County on April 4, 1982. Three children were born on July 12, 1995.

On July 17, 2003, defendant wife commenced a prior action for divorce (Kings Co Sup Ct, Index No. 20773/03).After a period of contentious litigation, in the winter of 2004, the parties reconciled. On March 11, 2004 they entered into an Agreement; after it was signed, the divorce action was discontinued.

Thereafter, the parties' attempt to reconcile proved futile and on June 23, 2008, the husband commenced the instant divorce action on the grounds of constructive abandonment.

During a preliminary conference held on November 11, 2008, defendant's prior counsel advised the court that he intended to file a motion seeking to vacate the Agreement. Accordingly, the preliminary conference order provided that:

"Defendant intends to file a motion to vacate the parties [sic] post-nuptial agreement. The motion papers are to be served on plaintiff's attorney on or before December 2, 2008 with a motion return date of December 17, 2008. All issues are held in abeyance pending a decision on the motion to vacate."

After defendant's counsel advised the court that he would not be making such motion at a conference held on December 17, 2008, the instant motion brought by his new counsel followed.



Plaintiff's Request for an Order Directing Plaintiff to Sell the

Former Marital Residence/Defendant's Request for Exclusive Occupancy

Plaintiff

In support of his motion, plaintiff argues that the Agreement should be enforced. More specifically, he asserts that since he commenced the instant action on June 23, 2008, he caused an "Operative Event" to occur, so that the parties are now bound by the terms of the Agreement. Accordingly, defendant is obligated to sell the former marital residence.

[*3]Defendant [*4]

By way of background, defendant alleges that the former marital residence was purchased in 1989 for approximately $310,000 and that the parties did not move in until approximately $600,000 was spent in renovation costs. She believes that there is an outstanding mortgage of approximately $118,000.

Defendant argues that since equitable distribution of marital assets is not available until the conclusion of an action for divorce, she should not be ordered to sell the former marital residence at this stage of the proceeding, particularly since she intends to contest grounds. Further, since she has been occupying the former marital residence for at least eight months while plaintiff has established a residence elsewhere, defendant asserts that she should be awarded exclusive occupancy of the premises, except for the basement, from which plaintiff conducts his business. Defendant also contends that the sale of the former marital residence should not be ordered, since it would not be in the best interests of the children. Instead, the home should not be sold until the youngest child reaches the age of 18 so that the children are not uprooted. Defendant further argues that inasmuch as the children are not parties to the Agreement, they cannot be bound thereby.

In more general terms, defendant also argues that the Agreement should be vacated in its entirety. In this regard, defendant asserts that plaintiff fraudulently induced her to enter into the Agreement by agreeing to continue to pay the customary and ordinary expenses incurred by her and the children, as established during the marriage, from the inception of the divorce action until the former marital residence is sold. Defendant contends that plaintiff has failed to do so, leaving her and the children without any support. Defendant thus concludes that since plaintiff has breached the terms of the Agreement, he has unclean hands and should not be entitled to seek to enforce it.

Defendant also avers that the Agreement does not comply with the Child Support Standards Act (CSSA) (Domestic Relations Law § 240[1-b]), since it limits plaintiff's child support obligation to income of $100,000 per year, although he earns approximately $400,000. Defendant further avers that plaintiff fraudulently filed an income tax return that indicates that he earned only $55,000 last year. In addition, defendant contends that she should be entitled to share in the value of plaintiff's voice therapy and cantor business, claiming that her prior attorney did not advise her that plaintiff's businesses were marital assets subject to equitable distribution, nor did he advise her with regard to the amount of maintenance and child support to which she would be entitled.

Plaintiff's Reply

In reply, plaintiff reiterates his contention that since he commenced the instant divorce action, he is entitled to enforce the Agreement, so that defendant is obligated to sell the former marital residence. He further alleges that the Agreement was entered into after several months of negotiation, during which time both parties were represented by counsel. Moreover, the parties engaged in extensive financial disclosure and the Agreement itself recites that the parties considered it to be fair and reasonable and to control in the event that they divorced. [*5]

Plaintiff also asserts that defendant's claim that he has not been paying any of the expenses incurred by her and the children "is less than credible." He similarly avers that defendant exaggerated both his income and the ordinary expenses that she and children incur. Further, even assuming, arguendo, that her assertion that he is not paying the expenses incurred by her and the children is true, her remedy would be to move to enforce the Agreement, not to set it aside on the ground of fraud. Plaintiff also argues that he is a voice coach to children and works out of the basement of the former marital residence. He thus concludes that he does not have a license or degree which is subject to equitable distribution. Moreover, since defendant worked in his office, she was well aware of the existence of the business and its income before she signed the Agreement. Plaintiff therefore concludes that the Agreement should be enforced and that defendant should be ordered to sell the former marital residence. Plaintiff does not contest defendant's request for exclusive occupancy of the former marital residence until it is sold, on the condition that she and the children do not interfere with his use of the basement and that she cooperates in selling the premises. In this regard, plaintiff alleges that defendant and the children have been stomping on the floor when he is in the house, so that his sessions have been disrupted.

Defendant's Reply

In her reply papers, defendant argues that plaintiff fails to understand that she is claiming that even if the Agreement is not set aside, the best interests of the children must take precedence and the court should not order the former marital residence to be sold, emphasizing that the Agreement is not applicable to the children because they are not parties thereto. Defendant further contends that the Agreement is illusory in that it does not provide her with any benefits.

The Agreement

As is relevant to the issues now before the court, the Agreement provides that:

"An Operative Event' is defined as the first to occur of the following events: (a) the date on which either party commences an action for separation, divorce, dissolution or annulment; or (b) the date on which either party serves a notice on the other by certified or registered mail or by hand delivery setting forth that he or she desires to terminate the marital relationship; or (c) the date a summons is issued by a religious tribunal upon the request of either party which seeks to dissolve the marriage (the Hazmanah'). Neither party shall be bound by the terms of this Agreement unless and until an Operative Event has occurred at which time both parties shall be bound by all terms, conditions, rights and obligations of this Agreement."

(Agreement, Art I[A], p 3).

With regard to the former marital residence, the Agreement provides that : [*6]

"[T]he parties agree that the properties are marital properties and shall be sold in the following manner upon the occurrence of any one of the Operative Events set forth in Article I. . . .

"If neither party exercises the option to purchase the interest of the other in the Martial Residence, then such residence shall be sold, in which event each party shall receive an amount equal to his or her Separate Property contributions to the Separate Cost of the Marital Residence plus one-half of the Net Proceeds' of such residence."

(Agreement, Art X[1], p 24-25). With regard to the distribution of other assets, the Agreement provides, in relevant part, that:

"All other property, real, personal or mixed, wheresoever situated, and not specifically addressed herein shall be the sole and separate property of the party in whose name same is titled. Each party hereby waives and relinquishes any right, claim or interest in or to any . . . scholastic or professional degrees or licenses, business or professional practice or any other property in the name, under the control, or in the possession of the other party, except as specifically set forth in this Agreement."

(Agreement, Art X[B], p 23).

In addressing the payments to be made by the husband prior to the sale of the marital residence, the Agreement provides that:

"Prior to the sale of the parties' marital residence pursuant to Article X herein, Husband will continue to pay the parties' and children's customary and ordinary living expenses of the parties and the children as established during the parties' marriage. Upon the closing of the sale of the parties' marital residence, Husband's child support and maintenance obligations as set forth in Articles III, V and VII shall commence."

(Agreement, Art I[B], p 3-4).

In addressing the child support to be paid by the husband, the Agreement provides that "in the event this Agreement becomes effective, and immediately commencing upon the closing of the sale of the parties' marital residence, Father shall pay" child support as set forth therein (Agreement, Art III[B], p 14). With regard to permanent maintenance, the Agreement provides:

"Commencing the first day of the month following the close of the sale of the martial residence, Husband shall support to Wife . . . [*7]

"As long as Husband is entitled to pay to Wife spousal support and receives substantially all of his income through his own practice or through employment for another, Husband shall pay to Wife the sum of four hundred dollars ($400.00) per week."

(Agreement, Art VII[A] and [B], p 19). The Agreement further provides that the duration of the Husband's obligation to pay maintenance is based upon the number of years that the parties were married, that it shall be suspended at any time that the Wife's income exceeds his and that the amount of maintenance payable shall be reduced if the Husband's only source of income is social security benefits (id.).

The parties also acknowledges the fairness of the Agreement in several provisions, e.g., it provides that "[e]ach party prefers the certainty of this Agreement, considers it to be a fair and reasonable agreement and intends that its terms shall control in the event either party seeks to terminate the marriage specifically as set forth in Article I, Paragraph A herein" (Agreement, Recitals, para J, p 3). It further states that "[e]ach party has had the advise and counsel of their own attorney, selected by each, in the negotiation and execution of this Agreement" (Agreement, Recitals, para K, p 3). As is also relevant herein, the Agreement provides that:

"Wife acknowledges that the provisions of this Agreement for her support and maintenance are fair, adequate and satisfactory to her, and in keeping with her accustomed standard of living and her reasonable requirements, and giving consideration of her own ability to provide for her own support and having contemplated all her present and future needs. Both parties hereby agree to and do accept all of the provisions of this Agreement and, in particular, the financial and property arrangements set forth in this Agreement, in full and complete satisfaction of any and all claims which each party may have against the other with respect to their property, including rights of equitable distribution that either party may have under applicable present and future laws of the State of New York or any other jurisdiction, rights to the distribution of property or a distributive award in lieu thereof, and rights to receive payment of maintenance or capital sums other than those specifically set forth herein. In so accepting all of the provisions of this Agreement, both parties specifically acknowledge that they each have consulted with counsel of his/her own choosing and has had a full and fair opportunity to obtain full financial disclosure and to conduct financial disclosure proceedings."

(Agreement, Art VII[E], p 20-21). Further:

"Husband and Wife each acknowledges that he or she has read this Agreement carefully, has had adequate time to consider and to reflect upon its terms and implications, has been fully informed and advised by his or her respective legal counsel as to the meaning, consequences and ramifications of all waivers, relinquishments, renunciations, and obligations under this Agreement during the marriage, and in the event of their physical [*8]separation after the solemnization of the marriage or any proceeding to dissolve the marriage, as well as in the event of their death.

"Husband and Wife each acknowledges that he or she considers this Agreement to be fair and reasonable at the time of its making and desire that a court find that this Agreement is not unconscionable and is enforceable in accordance with its terms. Husband and Wife each acknowledges that he or she is entering into this Agreement freely, voluntarily and with full knowledge and intention that all provisions of this Agreement be given full effect in any matrimonial action or other proceeding for dissolution or otherwise, in any jurisdiction whatsoever, as well as in the event of death. Each party waives, relinquishes and releases any and all possible right to challenge the validity or enforceability of this Agreement based upon any alleged deficiency or inadequacy of the financial disclosure made by the other party."

(Agreement, Art XIX[A] and [B], p 36).

Enforceability of the Agreement

As a preliminary issue, it has been held that "[w]here, as here, the matrimonial action . . . had not been terminated, a challenge to a stipulation entered into during the course of the litigation may be made by commencing a plenary action or by motion within the matrimonial action" (Cruciata v Cruciata, 10 AD3d 349, 350, 821 NYS2d 151 [2 Dept., 2004], citing Zeppelin v Zeppelin, 245 AD2d 504, 666 NYS2d 486 [1997]; Arguelles v Arguelles, 251 AD2d 611, 675 NYS2d 551 [2 Dept., 1998]).

Further, it is well established that:

"Domestic Relations Law § 236(B)(3) states that a nuptial agreement made before or during the marriage must satisfy three requirements to be valid and enforceable in a matrimonial action.' First, the agreement must be in writing. Second, it must be subscribed by the parties and third, it must be acknowledged or proven in the manner required to entitle a deed to be recorded.'"

(Matisoff v Dobi, 90 NY2d 127, 130, 663 NYS2d 526 [1997] [emphasis omitted]; accord Weinstein v Weinstein, 36 AD3d 797, 830 NYS2d 179 [2 Dept., 2007]). "This provision authorizes spouses or prospective spouses to contract out of the elaborate statutory system and provide for matters such as inheritance, distribution or division of property, spousal support, and child custody and care in the event that the marriage ends'" (Kessler v Kessler, 33 AD3d 42, 46, 818 NYS2d 571 [2 Dept., 2006], lv dismissed 8 NY3d 968, 836 NYS2d 540 [2007], quoting Matisoff, 90 NY2d at 132). It is also clear that a separation agreement is a contract subject to the principles of contract construction and interpretation and where the contract is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the instrument (Meccico v Meccico, 76 NY2d 822, 823-824, 561 NYS2d 551 [1990], citing Rainbow v Swisher, 72 NY2d 106, 109, 531 NYS2d 775 [1988]; Nichols v Nichols, 306 NY 490, 496 [1954], reh denied 307 NY 677 [1954]). [*9]

In consideration of the instant dispute, it must also be recognized that stipulations of settlement are favored by the courts and are not lightly set aside (see e.g. Tuccillo v Tuccillo, 8 AD3d 659, 779 NYS2d 234 [2 Dept., 2004]; Gilbert v Gilbert, 291 AD2d 479, 738 NYS2d 221 [2 Dept., 2002]). Hence, " [j]udicial review of separation agreements is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own'" (Brennan-Duffy v Duffy, 22 AD3d 699, 699-700, 804 NYS2d 399 [2 Dept., 2005], quoting Strangolagalli v Strangolagalli, 295 AD2d 338, 742 NYS2d 914 [2 Dept., 2002]). In addressing an application seeking to set aside the provisions of a settlement agreement, however, the court has explained that:

"[B]ecause of the fiduciary relationship that exists between spouses, postnuptial agreements are closely scrutinized by the courts and are more readily set aside on grounds that would be insufficient to nullify an ordinary contract (cf. Levine v Levine, 56 NY2d 42, 47, 451 NYS2d 26; Cardinal v Cardinal, 275 AD2d 756, 757, 713 NYS2d 370; Paruch v Paruch, 140 AD2d 418, 421, 528 NYS2d 119). To warrant equity's intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching' (Christian v Christian, 42 NY2d 63, 72, 396 NYS2d 817)."

(Barchella v Barchella, 44 AD3d 696, 697, 844 NYS2d 78 [2 Dept., 2007]). Accordingly, the " "courts have thrown their cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity"'" (Santini v Robinson, 57 AD3d 877, 880, 870 NYS2d 434 [2 Dept., 2008], quoting Kessler, 33 AD3d 42, 460, quoting Christian, 42 NY2d 63).

Hence, it is now axiomatic that "provided [stipulations of settlement] are not unconscionable, [they] will not be set aside in the absence of fraud, overreaching, mistake, or duress" (Shockome v Shockome, 53 AD3d 610, 610, 862 NYS2d 99 [2 Dept., 2008], citing Racanelli Constr. Co. v Tadco Constr., 50 AD3d 875, 855 NYS2d 645 [2 Dept., 2008]); Chambers v McIntyre, 5 AD3d 344, 345, 772 NYS2d 530 [2 Dept., 2004]; Brennan v Brennan, 305 AD2d 524, 524-525, 759 NYS2d 744 [2 Dept., 2003]). Stated differently, "[a] stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability" (see e.g. Doukas v Doukas, 47 AD3d 753, 849 NYS2d 656 [2 Dept., 2008], citing Rubin v Rubin, 33 AD3d 983, 823 NYS2d 218 [2 Dept., 2006]; Brennan-Duffy, 22 AD3d 699; accord Canarelli v Canarelli, 58 AD3d 658, 659 [2 Dept., 2009]; Darrin v Darrin, 40 AD3d 1391, 838 NYS2d 678 [3 Dept., 2007], lv dismissed 9 NY2d 914, 844 NYS2d 168 [2007]). "Although courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching, the general rule is that [if] the execution of the agreement . . . be fair, no further inquiry will be made'" (Levine, 56 NY2d at 47, quoting Christian, 42 NY2d at 73; accord Santini v Robinson, 306 AD2d 266, 267, 760 NYS2d 333 [2 Dept., 2003] [it is well settled that a separation agreement is closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or overreaching in its execution]). [*10]

The court has further explained that:

" 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' (Morad v Morad, 27 AD3d 626, 627, 812 NYS2d 126; see Christian v Christian, 42 NY2d at 71; Cosh v Cosh, 45 AD3d at 799). However, an agreement is not unconscionable merely because, in retrospect, some of its provisions were improvident or one-sided' (O'Lear v O'Lear, 235 AD2d 466, 466, 652 NYS2d 1008; see Brennan-Duffy v Duffy, 22 AD3d 699, 700, 804 NYS2d 399), and simply alleging an unequal division of assets is not sufficient to establish unconscionability (see Cosh v Cosh, 45 AD3d at 799; Morand v Morand, 2 AD3d 913, 915, 767 NYS2d 523)."

(Schultz v Schultz, 58 AD3d 616, 616, 871 NYS2d 636 [2 Dept., 2009]; accord Bright v Freeman, 24 AD3d 586, 588, 808 NYS2d 359 [2 Dept., 2005] [separation agreements or portions thereof may be set aside if their terms evidence a bargain so inequitable that no reasonable and competent person would have consented to it]). It has also been held that "[a]n agreement which results in an award of substantially all of the marital assets to one party while burdening the other party with substantial economic obligations is patently unconscionable" (Tartaglia v Tartaglia, 260 AD2d 628, 629, 689 NYS2d 180 [2 Dept., 1999], citing Grunfeld v Grunfeld, 161 AD2d 973, 557 NYS2d 965 [3 Dept., 1990]; Yuda v Yuda, 143 AD2d 657, 533 NYS2d 75 [2 Dept., 1988]).

As is also relevant here, Domestic Relations Law section 236(B)(3) provides that an agreement entered into by the parties with respect to spousal maintenance shall be valid and enforceable provided that the terms thereof "were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of the entry of final judgment" (see generally Deckoff v Deckoff, 284 AD2d 426, 726 NYS2d 567 [2 Dept., 2001]). In addressing the issue of whether provisions in an agreement pertaining to child support are enforceable, the court has explained that where a stipulation fails to comply with the CSSA, the remedy is to vacate only those provisions of the stipulation relating to child support, not to vacate the entire stipulation (see Toussaint v Toussaint, 270 AD2d 338, 339, 704 NYS2d 144 [2 Dept., 2000]; Sloam v Sloam, 185 AD2d 808, 586 NYS2d 651 [2 Dept., 1992]; Maser v Maser, 226 AD2d 684, 641 NYS2d 714 [2 Dept., 1996]; Kolmin v Kolmin, 65 AD2d 928, 410 NYS2d 447 [4 Dept., 1978]; Sylofski v Sylofski, 49 AD2d 971, 374 NYS2d 60 [3 Dept., 1975]).

In disposing of the issues raised herein, the court must also recognize that a challenge to a postnuptial agreement will view the agreement in its entirety and under the totality of the circumstances (see Reiss v Reiss, 21 AD3d 1073, 1074, 803 NYS2d 633 [2 Dept., 2005]). Moreover, a court cannot, under the guise of contractual interpretation, rewrite an agreement (Attea v Attea, 30 AD3d 971, 817 NYS2d 478 [4 Dept., 2006], affd 7 NY3d 879, 826 NYS2d 596 [2006], citing Rodolitz v Neptune Paper Prods., 22 NY2d 383, 386-387, 292 NYS2d 878 [1968]; Yoi-Lee Realty v 177th St. Realty Assoc., 208 AD2d 185, 190, 626 NYS2d 61 [1 Dept., 1995]; Pamerqua Realty Corp. v Dollar Serv., 93 AD2d 249, 253, 461 NYS2d 393 [2 Dept., 1983]; accord Matter [*11]of Nelson v Nelson, 48 AD3d 688, 850 NYS2d 915 [2 Dept., 2008] [a court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction and it may not construe the language in such a way as would distort the contract's apparent meaning]).

As is also relevant herein, it is the burden of the party seeking to set aside an agreement to show that the agreement was the result of fraud or overreaching, or that its terms were unconscionable (see e.g. Chambers v McIntyre, 5 AD3d 344, 345, 772 NYS2d 530 [2 Dept., 2004]; citing Jacobs v Jacobs, 234 AD2d 425, 651 NYS2d 897 [2 Dept., 1996]; Wilutis v Wilutis, 184 AD2d 639, 587 NYS2d 171 [2 Dept.,1992]; accord Reiner v Reiner, 59 AD3d 420, 874 NYS2d 143 [2 Dept., 2009]; Book v Book, 58 AD3d 781, 875 NYS2d 486 [2 Dept., 2009]; Doukas, 47 AD3d 753; Rubin, 33 AD3d 983). Finally, a motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face (see e.g. O'Malley v O'Malley, 41 AD3d 449, 836 NYS2d 706 [2 Dept., 2007], citing Brennan-Duffy, 22 AD3d at 700; Cohn v Cohn, 15 AD3d 332, 788 NYS2d 865 [2 Dept., 2005]).

Discussion

Herein, the court concludes that the parties' Agreement is not facially irregular, unreasonable or unconscionable. In this regard, the court rejects defendant's assertion that the Agreement is illusory in that does not provide her with any benefits. In this regard, the Agreement provides that when the former marital residence and the vacation bungalow are sold, defendant will receive one half of the proceeds, after credits are given for contributions of separate property (Agreement, Art X[C][1][c] and [d], p 25-26). In addition, all bank accounts held in joint name shall be equally shared upon the sale of the former marital residence (id. at X[C][2], p 26); if only one automobile is owned, each party is entitled to a one-half interest and if more than one is owned, the party who is the primary driver for each vehicle shall retain it (id. at Art X[C][3], p 26-27); and any remaining property is to be equally divided (id. at Art X[C][4]). Pursuant thereto, plaintiff also agreed to maintain life insurance in the amount of $600,000 until the children are emancipated (id. at Art XII, p 28-29). Accordingly, although defendant agreed to waive her right to share in plaintiff's scholastic or professional degrees and business, inasmuch as the Agreement provides that the parties shall equally share in all of the remaining marital assets (id.), it will not be vacated as unconscionable on the ground that defendant is not awarded any marital assets (see generally Santini, 57 AD3d 877; Bright, 24 AD3d 586; Tartaglia, 260 AD2d at 629).

Further, since the Agreement provides that plaintiff will pay defendant $400 per week in maintenance for 13 years after the former marital residence is sold, since the parties were married more than 25 years but less than 30 when the instant divorce action was commenced (Agreement, Art. VII[A], [B] and [C], p 19-20), the court declines to find that the provisions relating to maintenance are either unreasonable when made or unconscionable now (see Deckoff, 284 AD2d 426). In addition, even assuming that the provisions of the Agreement pertaining to child support are unenforceable because they do not comply with the CSSA, the proper remedy is to vacate only those provisions, not the entire Agreement (see e.g. Toussaint, 270 AD2d at 339; Sloam, 185 AD2d 808; Maser, 226 AD2d 684; Kolmin, 65 AD2d 928; Sylofski, 49 AD2d 971). [*12]

In so holding, it must also be recognized that defendant was represented by counsel when the Agreement was negotiated, which supports a finding that it was not entered into as the result of fraud, coercision or overreaching (see generally McFarland v McFarland, 70 NY2d 916, 918, 507 NYS2d 781 [1987]; Levine, 56 NY2d at 48; Christian, 42 NY2d at 71]). Nor does court find that defendant's conclusory assertion that her former counsel was negligent in representing her in connection with the stipulation of settlement is sufficient to warrant vacatur of the Agreement (see generally Kalra v Kalra, 57 AD3d 947, 870 NYS2d 447 [2 Dept., 2008]). Similarly, defendant does not deny that the parties engaged in extensive financial discovery prior to executing the Agreement. In this regard, it has been held that "a husband's failure or refusal to disclose his financial circumstances when the agreement is executed is not sufficient to void an agreement fair on its face, particularly when the wife was represented by counsel during the negotiations and execution" (Kojovic v Goldman, 35 AD3d 65, 70, 823 NYS2d 35 [1 Dept., 2006], lv denied 8 NY3d 804, 831 NYS2d 106 [2007]). "Moreover, the agreement itself recites that the defendant entered into it freely, voluntarily and with full knowledge of its consequences" (Schultz, 58 AD3d at 616-617). It is also significant to note that in the Agreement, the parties specifically agreed that neither would challenge the Agreement on the grounds of insufficient financial disclosure (Agreement, Art XIX[B], p 36) and defendant affirmatively waived her right to share in any other property owned by the parties (id. at Art X[B], p 23).

Similarly, the court finds defendant's contention that the Agreement must be set aside on the ground of fraud because plaintiff is not complying with its terms to be unavailing. In this regard, as argued by plaintiff, the proper remedy for any alleged breach of the Agreement is a motion seeking enforcement.

Having held that the Agreement will not be set aside in its entirety, the court must address plaintiff's request for enforcement of the provision requiring the immediate sale of the former marital residence and his request for an injunction, as well as defendant's request for exclusive occupancy of the premises, pendente lite child support, pendente lite maintenance, arrears and attorneys' fees.



Sale of Former Marital Residence/Exclusive Occupancy

As argued by defendant, it is beyond dispute that the court has the discretion to award exclusive occupancy to the custodial parent where it is found to be in the best interests of the child (see e.g. Cabeche v Cabeche, 10 AD3d 441, 441, 780 NYS2d 909 [2 Dept., 2004], citing Goldblum v Goldblum, 301 AD2d 567, 754 NYS2d 32 [2d Dept., 2003]; Mazzone v Mazzone, 290 AD2d 495, 736 NYS2d 683 [2 Dept., 2002]; Waldmann v Waldmann, 231 AD2d 710, 647 NYS2d 827 [2 Dept., 1996], lv denied 89 NY2d 809, 655 NYS2d 889 [1997]; Leabo v Leabo, 203 AD2d 254, 610 NYS2d 274 [2 Dept., 1994]). The instant action is distinguishable from the above cited cases, however, in that the parties herein executed an agreement pursuant to which both agreed to sell the former marital residence upon, inter alia, the commencement of a divorce action (Agreement , Art I[A], p 3; Art X[C][1], p 23-24). As discussed above, the court finds no basis to set aside the Agreement in its entirety, as it is not the result of fraud or overreaching and is not unconscionable. [*13]

Accordingly, the court grants that branch of plaintiff's motion seeking to enforce the Agreement by ordering defendant to sell the former marital residence. In so holding, the court notes that the cases relied upon by defendant do not compel a contrary holding, since none of those cases provide authority for the court to set aside a facially valid agreement entered into between the parties that requires the sale of a former marital residence and make a de novo determination with regard to exclusive occupancy (see e.g. Graziano v Graziano, 285 AD2d 488, 727 NYS2d 473 [2 Dept., 2001], lv denied 97 NY2d 725, 740 NYS2d 696 [2002]; Kalisch v Kalisch, 184 AD2d 751, 585 NYS2d 476 [2 Dept., 1992]; Leabo, 203 AD2d 254; Butler v Butler, 171 AD2d 89, 574 NYS2d 387 [2 Dept., 1991]; Hillmann v Hillmann, 109 AD2d 777, 486 NYS2d 87 [2 Dept., 1985]). Defendant is, however, granted exclusive occupancy of the former marital residence, except for the basement, pending its sale pursuant to the terms of the Agreement, since plaintiff does not oppose this request, on the conditions that she cooperates in attempting to sell the property and that she and the children do not interfere with plaintiff's use of the basement for his business. The parties clearly charted their own course by entering into the obligation to sell beingeffectuated by inter alia service of a new divorce action.

Implicit in this holding is a finding that defendant's contention that the former marital residence cannot be sold because the children reside there and are not parties to the Agreement is specious. In this regard, the court notes that if this reasoning were accepted, parties would be unable to enter into agreements that provide for custody or child support, since children are never parties to nuptial agreements. Clearly, this was not the intent of the law (see generally Kessler, 33 AD3d at 46).

Defendant's Request for Pendente Lite Maintenance and Child Support

Defendant

In support of her request, defendant alleges that she is not employed and is obtaining money to support herself and the children from family, friends and public assistance because plaintiff has paid only the mortgage and utilities on the former marital residence, plus health insurance for the children, since the commencement of the instant divorce action. Accordingly, he has not been paying support as required pursuant to the Agreement. More specifically, defendant claims that plaintiff had not paid for food; clothing; unreimbursed medical expenses, including orthodontic bills; tuition; speech therapy; and physical therapy.

Defendant further alleges that plaintiff earns approximately $400,000 per year; she knows this because she worked for him for 20 years as his personal assistant/secretary, most recently at a salary of $200 per week. Defendant contends that plaintiff sees an average of 20 clients a day and charges $65 per half hour. Plaintiff, however, reported income of only $86,000 in 2003, as indicated on the net worth statement that he filed in the previously commenced divorce action. On his 2007 income tax return, plaintiff indicates that he earned only $55,000, which amount is insufficient to cover the families' expenses. Defendant therefore contends that plaintiff should be ordered to pay the expenses that he paid during the marriage, as set forth in her Net Worth Statement, which expenses total $4,000 per month, or $40,000 through April 23, 2009. Defendant [*14]concludes that since plaintiff paid her only $1,500, he owes her $38,500 as of that date. She further argues that plaintiff owes the orthodontist $3,000 and he owes her $5,800 that she borrowed to pay the orthodontist. With regard to pendente maintenance, defendant contends that plaintiff owes her $3,000 per month to pay her customary and ordinary living expenses, as provided in the Agreement. She accordingly concludes that she is entitled to a judgment in the amount of $30,000 for arrears, but no less that $400 per week, or $16,800, since the Agreement requires plaintiff to pay her $400 per week in maintenance after the former marital residence is sold.

Plaintiff

In opposition, plaintiff avers that since the commencement of the action, he has been paying all of the family's "customary living expenses as established during the marriage," i.e., temporary support in the amount of $500 per week; the mortgage, real estate taxes and insurance on the former marital residence in the amount of $4,139; medical insurance in the amount of $1,357 per month; life insurance in the amount of $600 per month; and tuition for the three children in the amount of $1,621 per month. He admits that he stopped paying $500 per week in support when he discovered that defendant used some old checks that he had pre-signed to pay expenses that were not reflective of their pre-separation life style without his knowledge or consent.

Plaintiff also points out that defendant inflates numerous expenses on her net worth statement. For example, she lists $500 per month for the rent on his apartment and $4,625 per month for the children's school, expenses which he has been paying. He also argues that many of the expenses listed far exceed the style of living that the parties maintained, i.e., $350 per month for lunch for the children, $430 per month on household maintenance, $850 per month for clothing for the children, $600 per month for clothing for her, $400 per month for vacations, $1,600 for food, $1,000 per month for her vitamins, $800 per month in unreimbursed medical expenses and $375 per month for summer camp.

Plaintiff also contends that defendant grossly overstates his income. More specifically, he avers that defendant is well aware of his financial circumstances, since she was "in charge" of the income that he earned throughout the marriage. Moreover, she wrote the checks to pay the parties' expenses. In addition, as discussed above, during the first divorce action, the parties engaged in extensive financial discovery. Plaintiff also alleges that even assuming that he was fully booked and saw 12 clients per day at the rate of $50 per client, he would earn only $3,000 per week, or $156,000 per year, and not the $400,000 that defendant claims that he earns. Further, this estimate does not allow for any days off. Plaintiff therefore concludes that not only does defendant not need $4,000 per month in temporary child support and $3,000 per month in temporary maintenance, he cannot afford these sums. In fact, plaintiff avers that the parties agreed that the former marital residence would be sold so that there would be sufficient funds available to meet their expenses. Plaintiff also argues that if the former marital residence is sold, the children will not be left homeless, since defendant will be able to use the money generated by the sale to rent a three bedroom apartment in the same neighborhood.

Plaintiff also contends that the child support provisions of the Agreement are in full compliance with the CSSA. In this regard, he asserts that pursuant to the Guidelines, he would be [*15]obligated to pay only 29% of his income up to $80,000 per year, or $23,200 per year or $1,933 per month, which is $484 per month less than he agreed to pay. Moreover, he has agreed to pay 100% of the children's unreimbursed medical expenses, camp and extracurricular expenses.

In addition, plaintiff contends that there are no arrears under the agreement for child support or maintenance due and owing. With regard to defendant's demand that he pay the children's orthodontist expenses and tuition in accordance with invoices that she sent, plaintiff argues that defendant unilaterally decided to take the children to the orthodontist and to enroll them in a prohibitively expensive school, which actions are in violation of the Agreement. He therefore concludes that he is not obligated to pay these expenses. He also avers that he continues to maintain medical insurance and will continue to pay unreimbursed expenses, as long as defendant uses in network providers. He also alleges that he continues to maintain life insurance in the amount of $600,000.

Defendant's Reply

With regard to pendente lite child support and maintenance, defendant argues that even if the Agreement is not set aside, plaintiff is obligated to continue to pay all of the children's customary and ordinary living expenses. She further avers that plaintiff's failure to annex checks evidencing the payments that he claims that he made to her compels the conclusion that no such payments were made. Defendant explains that when she used five pre-signed checks in the amount of $1,538.18, the bank did not pay the checks because plaintiff placed a stop payment on some or all of them. Defendant further argues that plaintiff is obligated to pay the outstanding orthodontic bills in the amounts of $1,450, $1,050 and $1,050 for each of the children; tuition in the amount of $27,825; and arrears in child support and maintenance, as previously discussed.

With regard to the child support provisions in the Agreement, defendant avers that although plaintiff is obligated to pay basic child support on his income up to $100,000, the Agreement does not recite the amount of his earnings. Accordingly, the Agreement is not in compliance with the CSSA opt-out provisions. Defendant thus argues that an award of final child support must await trial.

The Agreement

The provisions of the Agreement controlling the amount of maintenance that plaintiff is obligated to pay were quoted above in discussing defendant's application to set aside the Agreement. With regard to child support, the Agreement provides that:

"1) In accordance with the CSSA, Father shall pay 29% of up to his first $100,000 of income, or $29,000 annually, or $2,417 monthly or $557.69 weekly. For purposes of calculating this amount, the parties shall use Father's income as reported on the most recently filed income tax return at the time of the effective date of this Agreement; and

"2) All education expenses of the parties' three minor children including fees, tuition and expenses through the children graduating from a secondary educational institution such as a

yeshiva or high school; and [*16]

"3) All expenses for camp and extracurricular activities expenses not to exceed $1,000 per child per year;

"4) Unreimbursed medical and health insurance coverage expenses as set forth in Article IV herein."

(Agreement, Art III[B], pp 14-15)

Pendente Lite Maintenance

"It is the general rule that as long as there is a subsisting separation agreement, temporary alimony may not be awarded" (Thompson v Thompson, 91 AD2d 683, 684, 457 NYS2d 132 [2 Dept., 1982], citing Kulok v Kulok, 20 AD2d 568, 569, 245 NYS2d 859 [2 Dept., 1963]; Marans v Marans, 27 AD2d 735, 277 NYS2d 29 [2 Dept., 1967]). Accordingly, a "claim for pendente lite relief is barred by the existence of the facially-valid separation agreement" (Fixler v Fixler, 290 AD2d 482, 483, 736 NYS2d 111 [2 Dept., 2002], citing Rubin v Rubin, 262 AD2d 390, 690 NYS2d 742 [2 Dept., 1999]; Klein v Klein, 246 AD2d 195, 676 NYS2d 69 [1 Dept., 1998]; Demis v Demis, 155 AD2d 790, 564 NYS2d 515 [3 Dept., 1989]; Breen v Breen,114 AD2d 920, 495 NYS2d 195 [2 Dept., 1985]; Thompson, 91 AD2d 683), so that it would be error to grant a party wife temporary maintenance unless and until it is set aside (Rubin, 262 AD2d at 391; see also Klein, 246 AD2d 195 [a separation agreement, not invalid on its face, precludes the award of temporary maintenance and interim counsel fees until such agreement is set aside, unless there is evidence that the unsupported spouse is in danger of becoming a public charge]).

In view of the court's determination that the Agreement will not be set aside, plaintiff is not entitled to an award of pendente lite maintenance. She is, however, entitled to an order directing plaintiff to comply with the terms of the Agreement i.e., he must continue to pay the customary expenses that the wife incurred during the marriage. Since the parties are unable to reach an agreement with regard to what expenses should be paid and in what amount, the issue of the amount of money that plaintiff is obligated to pay to defendantpursuantto the terms of the Agreement (Agreement, Art I[B], p 3-4), pending the closing on the sale of the former marital residence shall be determined at a hearing.

In so holding, the court finds defendant's claim that she now receives food stamps to be insufficient to warrant a different conclusion. In the first instance, defendant offers no evidentiary support for her claim. More significantly, if her allegation is true, it is the result of plaintiff's failure to pay support as provided in the Agreement, and is not the result of the amount of support as set forth therein being unreasonable or unconscionable. Further, defendant worked for plaintiff throughout the marriage. She does not allege, however, that she has sought employment since plaintiff commenced the instant action or that she is unable to find work. In this regard, the court further notes that the parties contemplated that defendant would obtain employment, since the Agreement provides that plaintiff's obligation to pay maintenance will be tolled in the event that defendant is earning more money than him (Agreement, Art VII[A], p 19); that plaintiff will pay all of the children's unreimbursed medical expenses until defendant obtains employment, at which time his share of the cost will be determined in accordance with the CSSA (id. at Art. IV[A], p [*17]15-16); that defendant shall advise plaintiff of any medical insurance furnished to her by her employer, if she becomes employed, and will substitute her insurance so long at it is available to her at no additional cost (id. at Art. IV[B], p 16); and that the cost of medical insurance shall be apportioned between the parties on the pro rata basis of their respective incomes in the event that plaintiff loses his insurance (id. at Art. IV[D], p 17).

Child Support

It has been held that:

"Domestic Relations Law § 240(1-b)(h) provides that a validly-executed support agreement which deviates from the basic child support obligation set forth in the Child Support Standards Act must specify, inter alia, the amount that the basic child support obligation would have been under the CSSA and the reason or reasons that the agreement does not provide for payment of that amount. The separation agreement entered between the parties failed to set forth the presumptively correct amount of support that would have been fixed pursuant to the CSSA, and failed to articulate the reason the parties chose to deviate from the CSSA guidelines. Consequently, the Supreme Court properly vacated those provisions of the agreement purporting to provide for the plaintiff's child support obligation (see Jefferson v Jefferson, 21 AD3d 879, 881, 800 NYS2d 612; Cardinal v Cardinal, 275 AD2d 756, 757, 713 NYS2d 370; see also Domestic Relations Law § 240[1-b][h])."

(Anderson v Anderson, 50 AD3d 610, 610, 855 NYS2d 194 [2 Dept., 2008]). Further, where an agreement is found to be unenforceable, the defect cannot be remedied by a recital in the findings of fact and conclusions of law and the judgment of divorce, since those documents are not prepared contemporaneously (see Baranek v Baranek, 54 AD3d 789, 864 NYS2d 94 [2 Dept., 2008], citing Matter of Sievers v Estelle, 211 AD2d 173, 626 NYS2d 592 [3 Dept., 1995]).

As argued by defendant, a review of the child support provisions in the Agreement reveal that they fail to set forth the income of each parent or the presumptively correct amount of child support payable pursuant to the CSSA, and also fail to articulate a reason for deviating therefrom. From this it follows that the child support provisions in the Agreement must be set aside (see e.g. McDermott v McDermott, 54 AD3d 911, 865 NYS2d 244 [2 Dept., 2008]; Jefferson, 21 AD3d at 881; Warnecke v Warnecke, 12 AD3d 502, 503-04, 784 NYS2d 631 [2 Dept., 2004]; Lepore v Lepore, 276 AD2d 677, 678, 714 NYS2d 343 [2 Dept., 2000]; Cardinal, 275 AD2d at 757-58; Tartaglia, 260 AD2d at 629.

As discussed above, however, vacatur of the provisions in the Agreement relating to child support does not require court to vacate the entire Agreement (see e.g. Toussaint, 270 AD2d at 339; Sloam, 185 AD2d 808; Maser, 226 AD2d 684; Kolmin, 65 AD2d 928; Sylofski, 49 AD2d 971).

In addressing the issue of the amount of pendente lite child support that defendant shall be awarded, it must be recognized that such an award is not required to be made pursuant to the CSSA (see e.g. Kyriazis v Kyriazis, 260 AD2d 447, 687 NYS2d 723 [2 Dept 1999]; Eckstein v Eckstein, 251 AD2d 537, 674 NYS2d 745 [2 Dept., 1998]; Nordgren v Nordgren, 237 AD2d 498, 655 NYS2d 585 [2 Dept., 1997]; Fischman v Fischman, 209 AD2d 916, 619 NYS2d 198 [3 Dept., [*18]1994]; George v George, 192 AD2d 693, 597 NYS2d 129 [2 Dept., 1993]). Similarly, " [w]hile minor children are not parties to a separation agreement between their parents, and the courts may increase provisions for child support as justice requires, there is no need to do so where, as in this case, there is an absence of proof that adequate support has not been provided the children'" (Klein, 246 AD2d at 199 [citations omitted]).

Applying these general provisions of law to the facts of this case, and in view of the fact that the parties' Agreement provides that plaintiff will continue to pay the children's customary living expenses pending sale of the former marital residence, the court orders plaintiff to continue to pay these expenses. As is the case with regard to defendant's demand for maintenance, however, inasmuch as the parties are unable to agree to the amount of money to which plaintiff is entitled to receive as pendente lite child support pursuant to the terms of the Agreement (Agreement, Art I[B], p 3-4), this issue shall be resolved at a hearing. It would be premature to determine if the amount is adequate without first determining what the amount is.

Defendant's Request for a Money Judgment

Having held that the Agreement is enforceable, defendant is entitled to enforce the terms set forth therein. Accordingly, after the issue of the amount of money that plaintiff is obligated to pay defendant to meet the ordinary and customary expenses incurred by her and the children as established during the marriage is determined, pursuant to the parameters of the parties agreement. the issue of the amount of arrears in pendente lite maintenance and child support, if any, to which defendant is entitled shall also be determined at the hearing. Further, in accordance with the terms of the Agreement, the amount of arrears, if any, to which defendant is entitled shall be calculated from the date that plaintiff commenced the instant divorce action (Agreement, Art I[A] and [B], pp 3-4).

Contrary to plaintiff's assertion, the Agreement does not require him to agree to the expenses incurred for the children's medical and educational expenses for him to be obligated to pay these costs. While the Agreement does provide that the parties shall consult with each other regarding issues of health and education,[FN1] it does not give either party the right to make a decision in the event that the parties cannot agree. Instead, it provides for the children's school principal shall make a recommendation to select a mediator with regard to disagreements regarding education and the children's pediatrician to make a recommendation to select a mediator with regard to [*19]disagreements regarding health issues and further provides that either party may go to court if an agreement cannot be reached.[FN2]

Accordingly, the court finds that plaintiff is obligated to pay orthodontic expenses for the children, since the Agreement requires plaintiff to do so.[FN3] In this regard, defendant is not obligated to have the children treated by the least expensive doctor (see Lincer v Lincer, 30 AD3d 381, 382, 816 NYS2d 550 [2 Dept., 2006]; Hanfling v Hanfling, 23 AD3d 433, 808 NYS2d 117 [2 Dept., 2005]). Plaintiff, however, is entitled to challenge the reasonableness of the medical expenses for which defendant seeks reimbursement (see Domestic Relations Law § 240 [1-b][c][5]; see also Cohen-Davidson v Davidson, 291 AD2d 474, 476, 740 NYS2d 68 [2 Dept., 2002]; Jessup v LaBonte, 289 AD2d 295, 296, 734 NYS2d 219 [2 Dept., 2001]; Matter of Burke v Burke, 245 AD2d 1007, 667 NYS2d 102 [3 Dept., 1997); Matter of Ruder v Amgen, 244 AD2d 797, 665 NYS2d 722 [3 Dept., 1997]). The issue of the reasonableness of the amount of money charged by Dr. Graziano shall accordingly be determined at a hearing.

Inasmuch as the parties cannot agree with regard to the children's education, the issue of the private school that the children shall attend, along with the issue of the amount of tuition that plaintiff is obligated to pay, shall also be determined at a hearing.

[*20]Grounds for Divorce

The court declines to address either defendant's assertion that she intends to challenge grounds or plaintiff's contentions that defendant should not be permitted to do so because she already consented to the entry of a judgment of divorce on the ground of constructive abandonment or, in the alternative, that he is entitled to a divorce on that grounds. In so holding, the court notes that neither plaintiff nor defendant moved or cross moved for this relief (see CPLR 2214 and 2215; see generally Chun v North American Mort. Co., 285 AD2d 42, 729 NYS2d 716 [1 Dept., 2001] [the court was virtually without jurisdiction to grant the relief afforded to defendants where there was an absence of a notice of cross motion or any other notice to plaintiff that she would be required to respond to a motion to dismiss]; Bauer v Facilities Dev., 210 AD2d 992, 621 NYS2d 815 [4 Dept.,1994] [affidavits submitted in opposition to defendants' motions were insufficient to constitute a cross motion])[FN4].



Restraining Order

Plaintiff's Contentions

Plaintiff requests an order restraining defendant from transferring, selling, mortgaging, hypothecating, encumbering, or in any manner disposing of any and all marital assets, specifically, the former marital residence. In this regard, plaintiff argues that because the former marital residence is held in defendant's name alone, he is concerned that she will seek to sell and/or otherwise encumber it.

Defendant does not oppose this application.

The Law

"Domestic Relations Law § 234 authorizes a court to issue pendente lite injunctive relief in a marital action without requiring the movant to make the requisite showing normally required by CPLR article 63: irreparable harm and a likelihood of success on the merits" (see e.g. Loderhose v Loderhose, 216 AD2d 275, 275-276, 627 NYS2d 453 [2 Dept., 1995]). In addition, it has been held that a restraining order is properly granted where a spouse retains exclusive control over an asset and his or her "unilateral decision to transfer, sell or otherwise encumber [it] may serve to deprive the [other spouse] of [his or] her equitable share of it'" (Serdaroglu v Serdaroglu, 209 AD2d 606, 607, 622 NYS2d 51 [2 Dept., 1994]). It is well established, however, that "pendente lite restraints on property transfers be supported by proof that the spouse to be restrained is attempting or threatening to dispose of marital assets so as to adversely affect the movant's ultimate rights in equitable distribution" (Guttman v Guttman, 129 AD2d 537, 539, 514 NYS2d 382 [1 Dept., 1987]; see also Obermueller v Obermueller, 24 AD3d 641, 641, 808 NYS2d 323 [2 Dept., 2005]; Balkin v Balkin, 8 AD3d 416, 416, 778 NYS2d 537 [2 Dept., 2004]).

[*21]Discussion

Herein, inasmuch as the court clearly has the discretion and the authority to issue a restraining order, and since defendant does not oppose plaintiff's request for such an order, his request is granted (see e.g. Pagello v Pagello, 17 AD3d 428, 429, 793 NYS2d 447 [2 Dept., 2005] [court properly imposed a pendente lite restraint on the sale or transfer of plaintiff's assets in light of proof that she was attempting to dispose of assets that could adversely affect the movant's ultimate rights in equitable distribution]). The restraining order shall be limited, however, to prohibiting defendant from mortgaging or otherwise encumbering the former marital residence until it is sold in accordance with the above discussed provisions of the Agreement.

Counsel Fees

The Parties' Contentions

In support of her request for an award of pendente lite counsel fees in the amount of $30,000, defendant contends that such an award is not precluded by the terms of the Agreement.

Plaintiff avers that pursuant to the terms of the Agreement, defendant is not entitled to recover the attorneys' fees incurred in seeking to set aside the Agreement. In fact, plaintiff argues that the Agreement not only provides that he should not be responsible for defendant's interim counsel fees, but, in the event defendant's application to vacate the Agreement is denied, he is entitled to an order directing defendant to pay his legal fees.

The Agreement

As is relevant to this dispute, the Agreement provides that:

"In the event that either party defaults with respect to any obligation of his or hers under this Agreement and said default is not remedied within ten (10) days after the sending of a written notice by certified mail, return receipt requested, to the defaulting party specifying such default, or in the event of a suit to challenge or set aside the Agreement, the defaulting or challenging party shall indemnify the other against, or reimburse him or her for, the reasonable counsel fees and all other actual expenses resulting from or made necessary by the bringing of any suit or other proceeding to enforce, interpret, or set aside any of the terms, covenants or conditions of this Agreement, provided such suit or other proceeding results in a judgment, decree or order in favor of the non-defaulting or non-challenging party. For the purposes of this Agreement, it is understood and agreed that in the event one of the parties shall institute a suit or other proceeding against the other party to enforce any of the terms, covenants or conditions of this Agreement and after the institution of such action or proceeding and before judgment is or can be entered, the other party shall comply with such terms or conditions of the Agreement, then, and in that event, the suit, motion, or proceeding shall be deemed to have resulted in a judgment, decree, or order in favor of the party instituting it."

"If either party by any action, proceeding, defense, counterclaim or otherwise, seeks to vacate or set aside this Agreement or declare any of the terms and conditions to be invalid, void or against public policy, by any reason, including but limited to fraud, duress, incompetency, overreaching or unconsionability, said party shall reimburse the other party and be liable for any and all such party's reasonable attorney's fees and expenses, provided and to the extent such action, proceeding, [*22]counterclaim or defense results in a decision, judgment, decree or other dismissing or rejecting said claims."

(Agreement, Art XVIII[A] and [B], p 35).

The Law

It is well settled that "[w]here a stipulation of settlement provides the basis for an award of an attorney's fee, the terms of the Agreement control" (Arato v Arato, 15 AD3d 511, 512, 790 NYS2d 203 [2 Dept., 2005], citing Millard v Millard, 246 AD2d 349, 667 NYS2d 714 [1 Dept., 1998]; accord Leiderman v Leiderman, 50 AD3d 644, 857 NYS2d 162 [2 Dept., 2008] [where a stipulation of settlement provided that if either party defaulted with respect to any obligation set forth therein, the nondefaulting party, if successful in enforcing the terms of the stipulation by either judgment or settlement, would be paid a reasonable attorney's fee and related expenses and costs incurred in the enforcement, the terms of that provision, which were clear and unambiguous on their face, would control]; Riemer v Riemer, 31 AD2d 482, 299 NYS2d 318 [2 Dept., 1969] [a valid and subsisting separation Agreement is a bar to an application for counsel fees]; Demis, 168 AD2d 840 [it is well settled that where there is a valid and subsisting Agreement which controls the obligations of the parties, an award of counsel fees is foreclosed until the Agreement has been set aside]; see generally Nawi v Dixon, 59 AD3d 363, 875 NYS2d 448 [1 Dept., 2009]; Brod v Brod, 48 AD3d 499, 852 NYS2d 272 [2 Dept., 2008]; Shanon v Patterson, 38 AD3d 519, 519, 830 NYS2d 905 [2 Dept., 2007]).

Discussion

Herein, the court has determined that plaintiff has established that he is entitled to an order directing defendant to sell the former marital residence in accordance with the terms of the Agreement and for a temporary restraining order and that defendant is entitled to an order directing plaintiff tomake payments as provided in the Agreement, along with an award of arrears due and owing, if any.[FN5] Similarly, the court has held that defendant's request for an order vacating the Agreement is denied, although those provisions regarding permanent child support must be vacated. Accordingly, applying the above quoted provisions of the Agreement, each party is may be entitled to be reimbursed by the other for some portion of the attorneys' fees incurred. Further, inasmuch as defendant is not currently employed, it does not appear that she has the funds to pay her attorneys' fees. Thus, the issue of the proper apportionment of attorneys' fees pursuant to the Agreement incurred as between the parties shall also be determined in a hearing.

Counsel Fees Related to the Child Support Issue

Although under the terms of the Agreement an award of counsel fees cannot be deemed ripe for adjudication on the issue of vacatur of the agreement , there is a basis to award pendente lite fees on the de novo child support issue. The court rejects plaintiff's articulated theory in his opposition papers that ". . . I have no doubt that an award of counsel fees will only encourage defendant to [*23]unnecessarily prolong this litigation and continue to make unreasonable financial demands.". Inasmuch as defendant's appear are devoid of any specific request for fees on the child support issues, time estimates or the time spent, the application is denied with right to renew.

Interim counsel fees are awarded to ensure that "the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse" (Prichep v. Prichep, 52 AD3d 61, supra ). "A counsel fee award helps reduce what would otherwise be a substantial advantage to the monied spouse. Such awards are designed to redress the economic disparity between the monied spouse and the non-monied spouse' and ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet" (Kaplan v. Kaplan, 28 AD3d 523, 812 NYS2d 360 [2 Dept., 2006], quoting Frankel v. Frankel, 2 NY3d 601, 607 [2004], quoting O'Shea v. O'Shea, 93 NY2d 187, 190 [1999]). Interim counsel fees are awarded to level the playing field and "prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation" (Gober v. Gober, 282 AD2d 392, 393, 724 NYS2d 48 [1 Dept., 2001], quoting O'Shea v. O'Shea, 93 NY2d at 193; see Prichep v. Prichep, 52 AD3d 61). Thus, interim fees are generally warranted "where there is a significant disparity in the financial circumstances of the parties" (Prichep v. Prichep, 52 AD3d 61, supra ; see Deluca v. Deluca, 304 AD2d 610, 611, 788 NYS2d 145 [2 Dept., 2003]; Celauro v. Celauro, 257 AD2d 588. 589, 684 NYS2d 279 [2 Dept., 1999]).

Conclusion

Here, the court is bound by the Agreements provisions regarding counsel fees. Upon the papers submitted that issue must be determined at a hearing. For the foregoing reasons, plaintiff is granted an order directing defendant to sell the former marital residence and a temporary restraining order prohibiting defendant from mortgaging selling or otherwise encumbering the former marital residence until it is sold in accordance with the provision of the Agreement. Defendant is awarded exclusive occupancy of the former marital residence, except for the basement, on the conditions that she cooperates in attempting to sell the property and that she and the children do not interfere with plaintiff's use of the basement for his business. Defendant is awarded an order directing plaintiff to continue paying the customary and ordinary living expenses of the parties and the children established during the parties' marriage until the former marital residence is sold, as required by the Agreement, and to an award of any arrears due and owing. The amount of costs and expenses that plaintiff is obligated to pay during the period from the commencement of this action through the hearing, along with the amount of arrears due, if any, shall be determined at a hearing. In addition, the reasonable amount of orthodontic expenses that plaintiff is obligated to pay, along with the issue of where the children shall attend school and the amount of money that plaintiff is obligated to pay as tuition, shall also be determined at a hearing under the terms of the Agreement, as well as the amount of attorneys' fees, if any, that each party is entitled to recover from the other. The parties are directed to appear before Special Referee Henderson for a hearing on these issues on October 14, 2009, at 9:30 a.m. to hear and determine. If not on consent, then the matter shall be referred to the Special Referee to hear and report. Said report or determination shall be made within 60 days, upon the filing of the requisite [*24]forms and the approval of the Administrative Judge, pursuant to Article 22 of the Judiciary Law and 12 NYCRR Part 122. All other relief requested in the motion and cross motion is denied.

The only remaining trial issue is that of child support. The appropriate amount issubject to a trial on that issue. Pending the hearing on interim expenses the plaintiff shall continue pursuant to the court's May 18, 2009, consent order to pay $500.00 a week to the defendant and make payments to the child's orthodontist together with all payments previously made.

The foregoing constitutes the order and decision of this court.

ENTER:

Hon. Jeffrey S. Sunshine

J. S. C. Footnotes

Footnote 1: The Agreement provides, in pertinent part, that:

"The parties shall consult with each other with respect to the Children's health, their summer plans as provided for herein, any illnesses, emergencies and/or operations suffered by the Children, and any other matter of similar importance affecting the Children, whose well-being, health and development shall at all times be the paramount consideration of the Father and Mother."

(Agreement, Art II[N], p 10).

Footnote 2:The Agreement provides, in relevant part, that:

"The parties agree that they shall either communicate directly with one another on such issues or, if necessary, use intermediaries other than the parties' children to make recommendations regarding any visitation, custody, educational, or health issues concerning the Children. In the event the parties require the assistance of a mediator for disputes involving visitation/custody or education issues of the parties' minor children, the parties agree that the Children's school principal shall select a mediator to make a recommendation. In the event the parties require the assistance of a mediator for disputes involving health issues of the parties' minor children . . . the parties agree that the Children's pediatrician shall select mediator to make a recommendation. In the event one or both parties do not agree with the recommendation(s), the parties reserve the right to seek relief from the Court."

(Agreement, Art II[O], p 10-11).

Footnote 3: The Agreement provides, in relevant part, that:

"Father agrees to maintain medical insurance for the parties' Children until their emancipation as defined herein and to pay for all unreimbursed medical expenses of each child, until Mother obtains employment. Medical expenses will include expenses for doctors, dentists[,] orthodontists, hospitalizations, prescription drugs as well as physical therapy, occupational therapy, speech and language therapy and/or tutor for treatment of the parties' minor child Rachel for her pervasive development disorder."

(Agreement, Art IV[A], p 15).

Footnote 4:It should be noted that subsequent to the submissions of the instant applications, the issue of the grounds were on consent bifurcated and the plaintiff proceeded without objection to a divorce on the grounds of constructive abandonment where the defendant neither admitted or denied the application. The court reserved decision.

Footnote 5: For purposes of applying the provisions of the Agreement, the court shall treat defendant's cross motion as a written demand for the payment of arrears.