S.D. v N.D.

[*1] S.D. v N.D. 2010 NY Slip Op 50762(U) [27 Misc 3d 1215(A)] Decided on April 8, 2010 Supreme Court, Kings County Thomas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2010
Supreme Court, Kings County

S.D., Plaintiff,

against

N.D., Defendant.



6484/2007



Attorney for the plaintiff, S.D.:

Jay R. Butterman, Esq.

Butterman & Kahn, LLP

425 Park Avenue, 27th floor

New York, NY 10022

Attorney for the defendant, N.D.:

Barry Elisofon, Esq.

26 Court Street, Suite 2515

Brooklyn, NY 11242

Delores J. Thomas, J.

Upon the foregoing papers, defendant "N.D." moves for an order granting the following relief: (1) vacating the parties' orally transcribed stipulation of settlement, dated August 20, 2009 (the Stipulation), in whole or in part; (2) resuming and rescheduling the trial of the economic issues pending between the parties to the instant divorce action; (3) directing plaintiff "S.D." to comply with all so-ordered pendente lite support obligations for defendant and the parties' children; (4) awarding defendant exclusive occupancy of the former marital residence located in Brooklyn, New York and an order of protection; and (5) staying the issuance and entry of plaintiff's proposed judgment of divorce which was noticed to be settled on October 21, 2009. Plaintiff opposes the instant motion and [*2]cross-moves for an order granting the following relief: (1) appointing a forensic psychiatrist to determine whether defendant is fit to care for the parties minor child, "M.D." and (2) imposing monetary sanctions against defendant, pursuant to Section 130-1.1 of the Uniform Court Rules, in the form of payment of attorney's fees in an amount no less than $10,000.00, based upon the allegedly frivolous nature of defendant's instant motion to vacate the Stipulation and for related relief.

In support of her instant motion, plaintiff submits an affidavit wherein she avers, in relevant part, the following:

Upon information and belief, this Court is aware of the fact that I am normally on psychotropic drugs to deal with my anxiety problems, etc. Because of the fact that there was going to be a Trial I did not take my psychotropic drugs. As indicated in the allocation of August 20, 2009 . . . your Honor even allocuted me as to whether I was on drugs or not.

* * *

Unfortunately, with my not taking prescribed drugs, I was more anxious than I would normally be under medication and that affected my ability to concentrate and understand the full terms and impact of the orally transcribed Stipulation. In discussions with my prior attorney, I thought I was going to be receiving $400,000 or more up front of the one million dollars promised me. As it turns out, after reading the orally transcribed Stipulation . . . it turns out that I am only to receive $50,000 up front and two more $50,000 payments before I start receiving payments of $125,000 over many years. This is not what I understood the settlement to be. In addition, I was led to believe that all payments would have security. My review of the orally transcribed Stipulation of Settlement reveals that there is minimum security, if at all. I have been informed by my new attorney that the Stipulation of Settlement is nothing more than an agreement to agree and that the August 20, 2009 agreement to agree fails to meet the Child Support Standards Act.

* * *

As to Plaintiff's conduct since August 20, 2009, [he] has stopped paying the car insurance. He has stopped paying me spousal maintenance in a timely fashion and is several weeks late even though he is required to do so pursuant to the So Ordered Pendente Lite Stipulation . . . .

In addition, since August 20, 2009 Plaintiff has forced himself upon the family at the former residence on more than one occasion. He has parked himself in my bedroom for the night, locking me out and forcing me to sleep elsewhere in the house. After he leaves, and I have checked my personal belongings in the bedroom, some of those items are either missing or have been gone through. I know that the Plaintiff has another [*3]residence in Manhattan at the present and there is no reason for him to sleep over at the marital residence.

In further support of her motion, she submits the affirmation of her current attorney, who was not present at the time the Stipulation in question was placed on the record, wherein he states that the economic trial was "interrupted" by settlement negotiations, plaintiff had three attorneys, whereas defendant only had one attorney, and the resulting Stipulation was "spread upon the record by [p]laintiff's counsel with 5:00 pm quickly approaching." Plaintiff's counsel also states that the Stipulation is subject to vacatur because it allegedly fails to set forth the proper application of the child support percentages established by the CSSA.

Plaintiff also submits an unsworn, unaffirmed letter from Dr. Frederick J. Long, dated October 19, 2009, which states that defendant has been under his care since January 2007, was treated with medications for depression and anxiety, stopped said medications abruptly in August (no year specified, although the reasonable inference to be drawn is that said letter refers to August 2009), and that the cessation of said medications "may have affected her concentration and judgment."

The transcript of the Stipulation reflects that defendant was allocuted by the court as follows:

THE COURT:Mrs. "D.", you have also been duly sworn and you are still under oath.

Seated beside you is Miss Coffinas; correct?

MRS. D.:Yes.

THE COURT:Is she your attorney?

MRS. D.:Yes.

THE COURT:You've heard the terms of the agreement spread out on the record by Miss Kahn [plaintiff's attorney].

Did you discuss these terms with Miss Coffinas before they were placed on the record?

MRS D.:Yes.

THE COURT:Did she answer and explain any questions that you had regarding this agreement?

MRS. D.:Yes.

THE COURT:You are aware, Ma'am, that you are in the midst of trial and you have every right to continue with that trial and have me make the [*4]decision; correct?

MRS. D.:Correct.

THE COURT:You understand that by making this agreement, there will no longer be a trial?

MRS. D.:Yes.

THE COURT:You understand that this agreement is full and final and that you cannot change your mind, come back later and change this agreement?

Do you understand that?

MRS. D.:Yes.

THE COURT:Is anyone putting any pressure on you to make this agreement?

MRS. D.:No.

THE COURT:Do you make this agreement of your own free will?

MRS. D.:Yes.

THE COURT:Have you taken any drugs or alcohol which could impair your ability to understand this agreement?

MRS. D.:No.

THE COURT:Do you agree to abide by the terms and conditions of the agreement as spread on the record?

MRS. D:Yes.

THE COURT:Do you agree with the terms of this agreement as put on the record?

MRS D:Yes.

THE COURT:Are you satisfied with the services provided by your lawyer?

MRS. D:Yes.

In the instant case, the court declines to vacate the Stipulation. It well settled that open court stipulations of settlement are judicially favored and will not be set aside lightly by the court (see Nash v Yablon-Nash, 61 AD3d 832, 832 [2009]; Kalra v Kalra, 57 AD3d 947, 947 [2008]; Balkin v Balkin, 43 AD3d 967, 968 [2007]; Weissman v Weissman, 42 AD3d 448, 448-449 [2007], lv denied 9 NY3d 813 [2007]; Zafran v Zafran, 28 AD3d 752, 753 [2006]; Zioncheck v Zioncheck, 99 AD2d 563, 563 [1984]). Accordingly, where a settlement is entered into in open court by parties who assent to its terms and are represented by counsel, said agreement shall not be set aside unless it can be demonstrated that it was procured by mistake, fraud, duress, overreaching, or unconscionability (see Kalra, 57 AD3d at 947; Blackstock v Price, 51 AD3d 914, 914 [2008]; Weissman, 42 AD3d at 449). The thorough allocution of a party on the record by the court with respect to the subject stipulation militates in favor of its validity (see generally Blackstock, 51 AD3d at 914-915; Kinberg v Kinberg, 50 AD3d 512, 513 [2008]; Degregrio v [*5]Bender, 4 AD3d 384, 385 [2004]; Lefkowitz v Lefkowitz, 276 AD2d 598, 598 [2000], lv dismissed 96 NY2d [2001]). Moreover, "even a stipulation [of settlement in a divorce action] which was improvident will not be set aside unless it is manifestly unfair or unconscionable" (Cavalli v Cavalli, 226 AD2d 666, 666-667 [1996]). Similarly, neither encouragement by the court that the parties accept a stipulation of settlement (see Cantamessa v Cantamessa, 170 AD2d 792, 793 [1991]) nor "[g]eneralized contentions that a party felt pressured by the court" (Cavalli, 226 AD2d at 667), will support the vacatur of an otherwise valid agreement; rather, actual duress, as legally defined, is required (see id.).

Here, defendant has failed to demonstrate that the Stipulation should be vacated. She does not claim that the terms of same are unconscionable or even improvident. Instead, she states, in conclusory terms, that the Stipulation does not comport with her understanding of the agreement between the parties in terms of equitable distribution issues. Such claims are belied, however, by the court's thorough allocation of defendant on the record with her attorney present (see Sarai v Sarai, 267 AD2d 295, 295 [1999][affirming denial of motion to set aside certain provisions of stipulation of settlement where record supported trial court's determination that the movant voluntarily and knowingly entered into the stipulation with competent counsel at his side]). Moreover, the subject transcript reveals that defendant interrupted the placement of the Stipulation on the record at least twice by either voicing her need for clarification of an issue, which was promptly explained to her, or flagging an item for discussion and/or inclusion (see generally Lakaszuk v Lakaszuk, 304 AD2d 625, 626 [2003]. Such active participation by defendant during the placement of the Stipulation on the record, as well as her acknowledgment that she had discussed the terms of same with her attorney prior to assenting thereto in open court, had the opportunity to receive answers and explanations from said attorney, was satisfied with her attorney and agreed with the terms of the Stipulation and would abide by them, supports a finding by this court that the Stipulation is valid and enforceable. In addition, to the extent that plaintiff's current counsel, who was not even present during the placement of the Stipulation on the record, alludes to the existence of a pressured atmosphere based upon the late afternoon timing of same, the court notes that such conclusory and unsupported allegations fall far short of demonstrating the requisite duress or overreaching necessary to vacate a stipulation of settlement.

Defendant has also failed to demonstrate that she lacked mental capacity to enter into the Stipulation. It is well settled that "[i]n determining whether an agreement is voidable because of the incompetency of a party who has not been judicially declared incompetent, the test is whether that party was so deprived of her mental faculties as to be wholly unable to comprehend the nature of the transaction" (Wagner v Wagner, 156 AD2d 963, 964 [1989]; see also Smith v Comas, 173 AD2d 535, 536 [1991], lv denied 80 NY2d 754 [1992] or, in the alternative, whether the movant was unable to control his or her conduct due to mental illness at the time he or she entered into such contract (see Ortolere v Teachers' Retirement Bd. of City of New York, 25 NY2d 196, 202 [1969]. In addition, "a party's competency is presumed and the party asserting incapacity bears the burden of proving incompetence" (Feiden v Feiden, 151 AD2d 889, 890 [1989]). Sufficient admissible medical evidence must be proffered by the movant in order to establish his or her claim of lack of capacity to contract (see Mohrmann v Lynch-Mohrmann, 24 AD3d 735, 736 [2005]); see also Torsiello v Torsiello, 188 AD2d 523, 524 [1992][noting that claim of diminished capacity to contract is properly rejected where said claim is unsupported by [*6]evidentiary facts in admissible form]).

Here, defendant has not proffered any admissible medical evidence supporting her claim of incapacity to contract. Instead, she merely submits an unsworn, conclusory four-sentence "report" from her treating physician stating, with no elaboration, that her cessation of psychotropic medication in August 2009 "may have affected her concentration and judgment." Her own affidavit states, in similarly conclusory terms, that her alleged cessation of medication rendered her "more anxious that I would normally be under medication and that affected my ability to concentrate and understand the full terms and impact of the orally transcribed Stipulation." However, her thorough allocution and active participation during the placement of the Stipulation on the record belie such claims. Moreover, such claims, as previously stated, are not supported by competent medical evidence. As a result, the Stipulation is not subject to vacatur based upon defendant's alleged lack of capacity to contract.

Concerning the issue of the CSSA guidelines, the court finds that the child support portions of the Stipulation, read in conjunction with the proposed judgment, sufficiently satisfy said statute and, therefore, the agreement between the parties is not subject to vacatur based upon its alleged noncompliance with same. The findings of fact and conclusions of law submitted by plaintiff in support of the proposed judgment of divorce explain in great detail the application of the CSSA standards to the child support obligation of plaintiff as agreed to by the parties in the Stipulation and demonstrate the adherence of the obligations to the requirements of said statute. During the placement of the Stipulation on the record, the attorneys for plaintiff stated that although the attorneys for both parties were not in a position to include the required CSSA language at that time, they would work together in order to make sure the agreement comported with all relevant CSSA requirements The court finds that the child support agreed to by the parties does not represent an "opting out" of the CSSA requirements and the proposed judgment does not deviate from the Stipulation. Rather, the findings of fact and conclusions of law contained in the divorce judgment concerning the subject child support obligation merely explicitly incorporate the relevant CSSA language and requirements; thereby, when read in conjunction, both the proposed judgment and the Stipulation reflect that the agreement embodied in the Stipulation comports with the requirements of the CSSA and is not subject to vacatur on that basis (see generally Faasano v Fasano, 43 AD3d 988, 989-990 [2007];Gallet v Wasserman, 280 AD2d 296, 297 [2001])

Moreover, although an additional child of the parties (other than "M.D.", who was always considered in the parties' child support calculations, and a third child who has become emancipated since the Stipulation was placed on the record and was not included in same) apparently has since moved home unexpectedly from his studies abroad, there is no evidence that such change in the child's residence has impacted the required or necessary amount of the child support obligation of plaintiff or the needs of "M.D." such that either the vacatur of such provision or its modification is warranted (see Friedman v Friedman, 65 AD3d 1081, 1082 [2009][noting that where parties have agreed to child support provisions in a stipulation, the court should assume that they have anticipated and adequately provided for the child's future, and the terms of same should not be freely disregarded unless an unforeseen change in circumstances and increased need can be demonstrated]; Matter of Mason v Papol, 63 AD3d 942, 942 [2009][recognizing that a child support agreement based upon a stipulation of settlement should [*7]not be disturbed absent a showing that the agreement was unfair or inequitable, that there was an unanticipated change in circumstances or that the child's needs were no longer being met]). Accordingly, the Stipulation is not subject either to vacatur on the alleged ground that the child support provisions contained therein fail to comply with all relevant CSSA requirements or modification based upon the change in residency for one of the parties' children.

Finally, defendant is not entitled to an order of temporary or permanent exclusive occupancy of the marital residence or a related order of protection. It is well settled that, pursuant to Domestic Relations Law §234, "[c]ourts are statutorily empowered in a matrimonial action to award temporary exclusive possession of the marital residence to one of the parties" (Delli Venneri v Delli Venneri, 120 AD2d 238, 240 [1986]). Although such relief ordinarily should not be granted in the absence of evidence that such award to one spouse is necessary to protect the safety or persons and property, it has also been recognized that the presence of substantial domestic strife is sufficient to support the award of temporary exclusive possession (see id.). Violent threats and conduct on the part of the spouse against whom such relief is sought have been deemed sufficient to warrant the award of exclusive occupancy to the moving spouse (see Harrilal v Harrilal, 128 AD2d 502, 503 [1987]). The court possesses similar authority, pursuant to Domestic Relations Law § 252, to issue temporary orders of protection during a matrimonial action. Such orders are appropriate where the moving party's allegations are corroborated by the affidavits of third persons (see Peters v Peters, 100 AD2d 900, 901 [1984]) or the admissions of the allegedly offending party (see Sherman v Sherman, 135 AD2d 806, 807 [1987]). However, there is no evidence before the court that the few episodes of conflict which have taken place between the parties in the marital residence since the Stipulation was placed on the record represent either substantial domestic turmoil, pervasive and destructive acrimony or any other circumstances which would render it unsafe for both the parties' to continue to utilize the residence (see generally Preston v Preston, 147 AD2d 464, 465 [1989]; Kristiansen v Kristiansen, 144 AD2d 441, 442 [1988]; Tillinger v Tillinger, 141 AD2d 535, 535 [1988]). Accordingly, that portion of defendant's motion seeking such relief is denied.

Turning to plaintiff's cross motion, the court denies that portion of same wherein he requests the appointment of a forensic psychiatrist to determine the fitness of defendant to care for the parties minor child, "M.D.". The parties agreed to a detailed custody arrangement as part of the Stipulation. By applying for a forensic evaluation of defendant with respect to the custody agreement in place, and her ability to comply with same, plaintiff, in effect, seeks that the agreement be modified or set aside. However, " where parents enter into an agreement concerning custody, it will not be set aside unless there is sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interest of the [child]'" (McNally v McNally, 28 AD3d 526, 527 [2006],quoting Smoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 [2005]; accord Matter of Rawlings v Barth, 21 AD3d 495, 495 [2005], lv denied 5 NY3d 717 [2005]; Bobinski v Bobinski, 9 AD3d 441, 441 [2004]; Matter of Gaudette v Gaudette, 262 AD2d 804, 805 [1999], lv denied 94 NY2d 790 [1999]). Stated differently, "[a]lthough the totality of the circumstances of the case and the best interests of the child are factors to be considered in all cases where modification of custody is sought, where the parties have entered into an agreement, the agreement is entitled to considerable weight and it is incumbent on the party seeking the change to show that in light of [*8]changed circumstances continued adherence to the agreement would not be in the children's best interests" (Steck v Steck, 307 AD2d 819,819 [2003][citations omitted]; accord Granata v Granata, 289 AD2d 527, 527 [2001]). Further, where the parties have entered into a custody agreement which is subsequently explicitly incorporated into a judgment of divorce, the existence of a short time frame between the establishment of the custodial arrangement and the motion seeking modification of same militates against a finding of sufficiently changed circumstances (see generally McNally, 28 AD3d at 527).

Here, plaintiff seeks a forensic evaluation based upon defendant's alleged incapacity to enter into the Stipulation as alleged in her instant motion papers. The court, however, has rejected such claims as wholly unsubstantiated. Plaintiff fails to identify any other substantially changed circumstances that would compel this court to revisit the issue of custody. He also does not articulate that any demonstrable detriment to the child will occur if the current custody arrangement is left unmodified. Moreover, the parties entered into said Stipulation a mere three months prior to the instant cross motion and said Stipulation has been incorporated into a proposed judgment that currently awaits settlement by the parties. Given such factors, a forensic evaluation of the plaintiff would constitute an unwarranted fishing expedition into issues of the defendant's custodial fitness. Accordingly, that portion of plaintiff's motion seeking a forensic evaluation of defendant is denied.

Plaintiff's application for sanctions is also denied. Pursuant to 22 NYCRR 130-1.1[c], conduct during litigation may be considered frivolous, and therefore subject to sanction and/or the award of costs, including attorney's fees where: "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statement that are false" (Dank v Sears Holding Mgt. Corp., 69 AD3d 557, 557 [2010], quoting 22 NYCRR 130-1.1[c][internal quotation marks omitted]; accord Joan 2000, Ltd. v Deco Constr. Corp., 66 AD3d 841, 841 [2009]). To avoid sanctions, at the least, the conduct complained of must have a good faith basis (see Dank, 69 AD3d at 557).

In the instant case, the court, in its discretion, determines that sanctions are unwarranted. Although insufficiently supported and unsuccessful, the court cannot say, on the record before it, that plaintiff's motion was so lacking in a good faith basis that sanctions based upon allegedly frivolous conduct are properly imposed. Accordingly, the court declines to impose a penalty upon defendant pursuant to NYCRR 130-1.1.

As a result, the motion by defendant and cross motion by plaintiff are denied in their entireties. The temporary stay of the signing of the proposed judgment of divorce is hereby vacated. Plaintiff has already submitted the proposed judgment together with Findings of Fact and Conclusions of Law. Defendant's time to serve and file a Counter proposed Judgment and Findings of Fact and Conclusions of Law on notice is extended to May 14, 2010. The temporary grant to defendant of exclusive occupancy of the marital residence is also vacated. Pending the issuance of a final divorce judgment in this action, the so-ordered pendente lite stipulations, dated August 7, 2007, shall remain in full force and effect.The foregoing constitutes the decision and order of the court.

E N T ER,

J. S. C.