Irizarry v Hayes

[*1] Irizarry v Hayes 2020 NY Slip Op 50217(U) Decided on February 5, 2020 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2020
Supreme Court, Monroe County

Zulma Liz Irizarry, Plaintiff,

against

Shaun M. Hayes, Defendant.



18/05773



APPEARANCES:

Maureen A. Pineau, Esq.

Attorney for Plaintiff

Rochester, New York

Gabriella MacDonald, Esq.

Attorney for Defendant

Rochester, New York
Richard A. Dollinger, J.

Separation agreements - the touchstone for resolution of matrimonial litigation — have never been more critical to avoiding costly divorce trials, but in an evolving alternative dispute resolution ("ADR") climate, mediated agreements, often resolved without counsel by a couple seeking to minimize both contention and legal fees, raise difficult issues for trial courts. Add a layer of appellate skepticism to agreements constructed by non-lawyers and these agreements may be more likely to be set aside if a litigant's choices are, simply, imprudent.

Conversely, in the nascent ADR-friendly landscape of New York, this Court must consider whether a mediated separation agreement, repeatedly declared to be even-handed by its participants in its text, has an even loftier presumption of validity to be overcome in a subsequent challenge.

Plaintiff commenced this plenary action seeking, inter alia, to set aside the parties' Separation and Property Settlement Agreement, entered into on September 15, 2016, and incorporated in the parties' Judgment of Divorce entered November 2, 2016, in Ontario County. Defendant moves for summary judgment dismissing the action; Plaintiff opposes the motion on procedural as well as substantive grounds.

1. The putative prenuptial agreement

In this instance, the couple were married in 2008. Several weeks before the marriage, the husband signed a prenuptial agreement. The wife's signature is absent from this agreement, but a curious fact suggests that she knew the contents of the agreement. The wife signed her initials at the bottom of each page of the prenuptial agreement, including pages at the end, attached as Schedules, which listed the assets and liabilities of each party. The wife's attorney, who was identified in the agreement as her counsel, approved the agreement as to form, and signed the [*2]agreement, but document before the court does not contain the wife's signature. Importantly, the text of the prenuptial agreement indicates that the wife had read the agreement and was fully informed of its contents and "its legal effect." The document recited that "they fully understood that by this Agreement each is giving up substantial property rights which each would otherwise acquire during the marriage and in spite of that effect, each freely and voluntarily enters this agreement." The document, as presented to the court, does not include a statement of net worth in conformity with the Domestic Relations Law, but a schedule attached listed the husband's assets and liabilities and a second schedule listed the assets and liabilities of the wife. The document states that the "each party was provided with a disclosure of the property and financial obligations of the other party." The impact of this supposed agreement is undisputed: the wife did not sign it and therefore, its contents cannot be held against her.

2. The "One-Stop-Shopping" Separation Agreement and the Divorce Documents

The couple were then married and had a child. When marital difficulties arose, the couple sought the assistance of a mediator, who conducted several sessions between June and August 2016.[FN1] A separation and property settlement agreement ("the agreement") was drafted by the mediator. In their agreement, the couple were advised:

The parties have been encouraged by their mediator to retain their own independent legal counsel for purposes of conducting a best interest review of the terms and conditions of this Agreement prior to its execution.

The agreement added: Both parties acknowledge that they have had an opportunity to seek the advice of independent legal counsel and other professionals, such as financial planners and tax advisors and that they are entering this Agreement of their own free will.

However, the agreement also contained a provision that: Given that with the execution of this mediated agreement, the parties have resolved all their issues of dispute, they hereby agree to file an uncontested action for divorce, using the neutral scribing attorney as the attorney for the plaintiff, but restricting her advocacy to the promoting of this agreement only and not positions that may be contrary hereto.

The parties also agreed that they would equally share the cost of any filing fees or attorney's fees if the action between them remained an uncontested divorce. The couple agreed that they would jointly select an attorney to process the paperwork. The couple initialed each page in the agreement.

The agreement was a collaboration of a non-attorney mediator and an attorney, a practice that is common in the legal community overseen by this court. On the cover sheet of the agreement, the mediator acknowledged her participation by identifying "BJ Mann and Associates, BJ Mann, Mediator" and added the words "executed and recorded on September 15, 2016 with the Ontario County Clerk into." The signatures on the separation agreement were notarized by a Rochester-based attorney who submitted the judgment roll to the court. There is no allegation in this action that the agreement has any defect in its execution.

On the same day that the agreement was executed, the husband signed a verified [*3]complaint and commenced the divorce action by filing it in the clerk's office.[FN2] In the complaint, the husband alleged, under oath, that the couple had agreed to be bound by the agreement "which terms and conditions they have declared and pronounced to be fair, reasonable and not now unconscionable." The husband signature was notarized. The wife, in her answer (verified the same day), admitted the allegations in the complaint and consented to entry of an uncontested divorce judgment. She also stated in the answer that she "waives her right to any additional equitable distribution of marital property insomuch as all properties ever jointly owed, shared or enjoyed, have been distributed between the parties voluntarily prior to the commencement of the action by and through their Separation and Property Settlement Agreement." The wife simultaneously filed an affidavit in support of the divorce which was verified on the same day as well. In the affidavit, the wife stated: "I am not seeking any additional equitable distribution of assets or liabilities other than the distribution the Plaintiff and I have already negotiated and accomplished prior to bringing of this action, by and through our Separation and Property Settlement Agreement." She added: "I understand that I may be prevented from further asserting my right to equitable distribution." The wife signature was notarized by the attorney who had been selected by the parties to process the divorce settlement. The wife also signed a stipulation, submitted as part of the judgment, and verified the same day. In the stipulation, the wife waived her right to dispute the allegations in the complaint. The stipulation was also notarized by the attorney who oversaw the divorce.

A somewhat convoluted fact emerges regarding the financial disclosure in this divorce action. Adequate financial disclosure and a statement of net worth must be submitted to the court before a judgment of divorce can be signed. DRL §234B(4)(a). In this case, there was a statement of net worth filed with the Ontario County Clerk in the divorce action, but the first page indicates the statement is the wife's statement of net worth. The contents of the statement are the husband's assets and liabilities and the husband is the only spouse to sign and attest to the contents of the statement. The wife never signed the statement of net worth. In addition, the statement recites, in two places, that additional income and tax related documents (W-2s, 1099s, K1s and Income Tax returns) are attached as exhibits to the statement, but in a review of the Ontario County Court records, those documents are not in the public records. The husband's statement of net worth was signed the same day as the other pleadings.

In another twist in the factual fabric of this matter, both husband and the wife signed a disclosure and waiver document. The documents contained nearly identical language. The husband's disclosure and waiver as follows:

My spouse and I have resolved all issues of dispute between us in mediation. In so far as the facts and agreements that will be subject of my uncontested divorce will be taken directly from the separation and property settlement agreement that was the result of mediation, I did not need the attorney to do an independent review as to the best interests [*4]on my behalf, having had ample opportunity to obtain individual legal counsel prior to executing said agreement. Further, attorney has not given and will not give either myself or my spouse, any legal counsel that is the benefit of one party or the detriment of the other.[The] Attorney shall assist me as to processing the divorce action, functioning as the attorney for the plaintiff in my uncontested divorce action, whose sole purpose is to prepare and process my uncontested divorce action only and not to advocate any position inconsistent with those previously mediated and mutually agreed-upon as recited in my separation and property settlement agreement. In so far as my spouse and I have resolved all issues of dispute in mediation I have not asked, nor will I ask, attorney to render an opinion on my behalf as to the appropriateness of decisions I made to the mutual satisfaction of my spouse and myself, i.e., as to our property division and/or deviations from the CSSA as to child support if applicable.Furthermore, while always retaining the right to bring an action in malpractice should such be committed, I hereby waive any conflict of interest (perceived or real) related to the attorney for the plaintiff also functioning as a scribe in the translation of our underlying separation and property settlement agreement from our prior memorandum of understanding produced by our mediator and any conflict of interest (perceived or real) by having her draft all our perfunctory pleadings and acting as notary public on all pleadings filed with the court in my action for divorce.

This document, while signed by the husband, was not notarized nor acknowledged. The wife signed a similar document except: (1) she acknowledged that her spouse had retained the attorney as a "drafting and filing Attorney for purposes of filing an uncontested action for divorce;"(2) she acknowledged that the attorney "shall assist my legal spouse" in processing the divorce action . . . functioning as the Attorney for the plaintiff (husband);" and,(3) in the final paragraph, she repeated the same language as her husband in which she stated "I hereby waive any conflict of interest (perceived or real) related to the Attorney for the Plaintiff (husband) also functioning as a scribe in the translation of our underlying Separation and Property Settlement agreement . . . "

It is undisputed that the complaint, the answer, the wife's stipulation, the wife's affidavit, the statement of net worth and the disclosure and waiver forms were all signed and notarized on the same day in the presence of the attorney who oversaw the processing of the divorce application.

Thereafter, the court referee prepared the findings of fact and conclusions of law. With respect to the waiver of maintenance, the referee concluded that the terms and conditions of spousal maintenance were fair and reasonable when agreed upon and "are not now unconscionable" and added that the parties had reviewed the guidelines for maintenance as set forth in the Domestic Relations Law. The referee alluded to the equitable distribution, concluding that the parties "shall divide between them the marital assets as specifically agreed upon in their Agreement to reconcile the equitable distribution of marital property between the parties to their mutual satisfaction." In the conclusions of law, the referee determined "all economic issues of equitable distribution of marital property . . . have been resolved by the parties." Both the husband and the wife signed the findings of fact and approved it as to form and content. There is no evidence as to when they signed it. The couple also signed the judgment of divorce, and attested that they had "reviewed and approved" the judgment "as to [*5]form and content."[FN3]

The court thereafter, on November 2, 106, granted the uncontested divorce. For two years, the husband complied with his obligations under the judgment and the agreement. It is undisputed that the husband, in reliance on the agreement and in accordance with its requirements and in further accordance with a qualified domestic relations order, transferred $75,961.51 from his retirement accounts to his then former wife in December 2016. The payment to the wife was in full satisfaction for her share of the marital residence, a share of the husband's retirement and an advance of spousal maintenance.[FN4] There is also no dispute that the husband paid his ex-wife all the sums required by the agreement, including $10,000 in a check dated in December, 2016. The agreement also required the father to pay child support in excess of $30,000 since the execution of the judgment of divorce. There is no evidence that the former husband has not fully complied with the requirements of the agreement or the judgment of divorce.

3. The plenary action before the Court

The separation agreement was executed more than two years before the wife brought this plenary action, seeking to set aside the agreement and the judgment of divorce. The pending action, brought by the wife, seeks to vacate the agreement, describing it as "unconscionable." The complaint alleges that the agreement was prepared by the mediator — an undisputed fact — and alleges the wife was prevented from having independent counsel review the agreement. The wife alleges that the agreement was based on a "false premise," i.e., that the prenuptial agreement was binding in the wife. The wife alleges she was denied financial disclosure, which she characterizes as "overreaching" and there was no consideration for the bargain. The wife also alleges, as a second cause of action, a change in circumstances under the agreement and judgment of divorce and asserts the best interests of the child would require modification of custody provisions in the Agreement. She seeks a recalculation of child support.[FN5] Finally, the [*6]wife adds a cause of action for re-apportionment of the health insurance and other costs, demands appointment of an attorney for the child and counsel fees and disbursements.

In response, the former husband moved for summary judgment, arguing there were no undisputed facts and agreement was not unconscionable or a result of overreaching.[FN6] The wife opposed the motion on procedural grounds and suggested the allegations in the verified complaint created factual issues for the court that negated the demand for summary judgment.

4. The procedural objections to the summary judgment motion.

At the outset, the court rejects the wife's procedural complaints, including the contention that the motion is improper because no note of issue has been filed. While a motion for summary judgment made prior to the completion of discovery may be denied based upon the possibility of discovery leading to contested issues (see CPLR 3212 [f]; Corvino v Schineller, 168 AD3d 812, 813 [2d Dept 2019]), there is no requirement that a note of issue be filed prior to the making of a summary judgment motion (see Agility Funding, LLC v Wholey, 119 AD3d 1168, 1169 [3d Dept 2014]). With respect to the failure to attach the pleadings to the motion, this is a violation of CPLR 3212 (b). However, such a failure constitutes a simple "mistake, omission, defect, or irregularity" that may be overlooked "if a substantial right of a party is not prejudiced" (Sensible Choice Contr., LLC v Rodgers, 164 AD3d 705, 707 [2d Dept 2018]). The court perceives no such prejudice here.

"It is well settled that '[t]he proponent on a summary judgment motion bears the initial burden of establishing entitlement to judgment as a matter of law by submitting evidence sufficient to eliminate any material issues of fact' " (Oddo v City of Buffalo, 159 AD3d 1519, 1520 [4th Dept 2018], quoting Rice v. City of Buffalo, 145 AD3d 1503, 1504—1505 [4th Dept. 2016). That burden is not met simply "by noting gaps in [his] opponent's proof" (Nick's Garage, Inc. v. Geico Indem. Co., 165 AD3d 1621, 1622 [4th Dept. 2018] [internal quotation marks omitted]). Finally, it is well settled that "a mere statement in an attorney's affirmation in support of a motion for summary judgment . . . does not result in a shift of the burden to plaintiff" (Yun Tung Chow v Reckitt & Colman, Inc., 17 NY3d 29, 33 [2011]; see Jeune v O.T. Trans Mix Corp., 29 AD3d 635, 636 [2d Dept 2006] ["the defendants' proof, consisting solely of an attorney's affirmation suggesting that the plaintiffs' case on liability may not be capable of proof, was conclusory and speculative. As such, it was insufficient to meet the defendants' initial burden on a motion for summary judgment"]).

Initially, the court must analyze whether the attorney's affirmation submitted by Defendant is sufficient to meet his burden on the motion. While an attorney's affidavit can, as here, "serve as the vehicle for the submission of acceptable attachments which do provide 'evidentiary proof in admissible form' " (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]), the documents primarily relied upon by the defendant in this instance are simply the Separation Agreement itself, the validity of which is the very question to be determined, and the Judgment of Divorce incorporating it. While there is, as Defendant argues, a presumption in [*7]favor of such agreements (see Simkin v Blank, 19 NY3d 46, 52 [2012] ["Marital settlement agreements are judicially favored and are not to be easily set aside"]), the mere fact that such an Agreement was signed does not establish that it is not unconscionable or was entered into without duress. Moreover, "because of the fiduciary relationship existing between spouses, [a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse's overreaching" (Jon v Jon, 123 AD3d 979, 979 [2d Dept 2014] [internal quotation marks omitted]).

But, in this court's view, the public records of this divorce can be considered in untangling this summary judgment application, even if not presented to the court through the husband's motion. Long v. State of New York, 7 NY3d 269,274 (2006)(court can take judicial notice of court records from other proceedings); Shapiro v. Ettenson, 2019 NY Misc LEXIS 6899 (Sup.Ct. New York Cty 2019); Hickman v. Beretta, 2017 NYLJ LEXIS 3282 (Sup.Ct. Nassau Cty 2017)(court may take judicial notice of the county clerk's file); Khatibi v. Weill, 8 AD3d 485 (2d Dept. 2004) (court may take judicial notice of undisputed court records and files). See also H.T. v. M.T., 2016 NY Misc LEXIS 1071(Sup. Ct. Queens Cty 2016).[FN7]

At the heart of the substantive issue in this application is a significant question for practitioners: does the fact that a mediator worked with this couple, drafted an agreement that incorporated their decisions, advised the couple to retain an attorney to oversee the execution of the agreement, prepare the pleadings in the subsequent legal action, notarize the signatures of the couple on the pleadings and prepare the judgment roll (which the couple signed) raise an inference that the agreement is unconscionable or a result of overreaching? Before considering the ample legal issues confronted in this instance, the court notes that exact protocol followed here — use of a mediator and single attorney-scrivener to prepare the agreement and divorce documents on behalf of both husband and wife — is a widespread litigation alternative for divorcing couples in this neck of woods, if not in the hinterlands beyond. In addition, this court, as a supervising judge for matrimonial matters in an eight-county district, cannot ignore another persuasive reality: the New York courts have adopted a statewide "presumptive mediation" stance in matrimonial cases brought into litigation in the court system. This initiative suggests that the New York courts should look favorably on any form of mediation — even the pre-litigation mediation-attorney scrivener format such as occurred in this instance — as an alternative to litigation.[FN8] However, the broader legal question still hangs over this matter: does [*8]the fact that agreement was negotiated by a mediator, contained disclosures by the wife that she averred that the agreement was fair and not unconscionable and the same attestations were made in other signed and notarized documents prepared by a single attorney on behalf of both spouses, rebut the wife's claims, two years later, that the agreement is unconscionable or a consequence of overreaching?

Initially, this court notes that New York's embrace of mediation and, in particular, the recent statewide installation of "presumptive mediation," is particularly pertinent in matrimonial matters, when the participants have lived as a couple:

Mediation is based on the premises that: parties come voluntarily to the table, ready, willing, and able to negotiate; that the parties will engage each other openly and honestly towards the ends of arriving at a shared agreement; and, that through reaching their own agreements, these agreements are more likely to inspire long-term compliance. Finally, it imbues the third-party neutral mediator with the power to facilitate negotiations between the parties by focusing discussions on the couples' needs and underlying interests, by shaping communications and gently intervening in conflicts, and by attending to issues such as power imbalances and impractical solutions. The mediator is the steward and protector of the process. In summary, the process of divorce mediation has as its hallmarks empowerment, self-determination, third-party neutrality, candor, safety, confidentiality, and a future-orientated perspective.

ARTICLE: MEDIATION/COLLABORATIVE LAW: EXPLORING A NEW COMBINATION IN ALTERNATIVE DISPUTE RESOLUTION IN CASES OF DIVORCE AND DOMESTIC VIOLENCE, 20 Cardozo J. Conflict Resol. 329, 338 -339 (2019). In another context, the concept of mediation in matrimonial matters often reduces conflict in divorcing couples: . . . the reality that while people at the outset of divorce do have conflicting interests, at that magical moment when the mediator has helped them get to "Yes!" and the myriad details of their marital settlement have finally been worked through, the two spouses no longer retain those opposing interests - they now have a single, unified concern in getting their understandings accurately reduced to writing and formalized, and their divorce papers correctly filled out and processed through the court.

Collins, ACCESS TO FAMILY LAW: THE SCRIVENER'S DILEMMA IN DIVORCE MEDIATION: PROMULGATING PROGRESSIVE PROFESSIONAL PARAMETERS, 17 Cardozo J. Conflict Resol. 691, 694 (2019). Given New York's incorporation of mediation as an alternative to litigation, the role of a mediator and the scrivener in this matter must be cast into a different perspective. If the mediation achieves its goal — an agreement between the parties — and then the parties retain an attorney for formalize that agreement and present the formal papers to the court for issuance of a judgment of divorce, many of the pro forma complaints against enforcing such an agreement must be examined in a more demanding light.

Before examining recent decisions on vacating agreements, this court pauses to confirm that the advent of this form of alternative dispute resolution in matrimonial matters — the [*9]combined efforts of a mediator and the attorney-scrivener — should not, standing alone, engender a heightened judicial skepticism to the resulting agreement. The mediator's work in drafting or even overseeing the drafting of the agreement violated no known legal restrictions. The attorney scrivener in this instance also appears to not have violated any rules under the Code of Professional Conduct in New York. As one commentator recently noted:

New York State would appear to have prohibited the attorney/mediator as scrivener, but as a practical matter did not; it determined that a mediator cannot draft the Agreement and divorce papers unless the mediator can satisfy the "disinterested lawyer" test of DR 5-105(c), but as a practical matter the test appears to have been "passed" by every couple in the Empire State who reach terms after mediation. See NY State Bar Ass'n. Comm. on Prof'l. Ethics, Op. 736 (2001) . . . . In 2010, an experienced attorney-mediator in New York State was brought up on disciplinary charges by the Grievance Committee for the Ninth Judicial District (File No. 298190/10) after court personnel (but, not either client) objected to his having drafted a formal separation agreement at the conclusion of a mediation; the charges were subsequently dropped.

Id. At 701, n.42 & 43. In sum, this court concludes that the mere fact that mediator either drafted or assisted in the drafting the agreement and the attorney-scrivener oversaw the execution of the agreement and all the pleadings does not raise an inference either of unconscionability or overreaching.

But, as counsel for the wife reminds the court, the overall circumstances of the assent to the agreement must still be evaluated before any conclusion can be reached regarding the agreement under the Court of Appeals decision in Christian v Christian, 42 NY2d 63, 72 (1977)(agreements must be vacated if products of overreaching, fraud or unconscionable under all the circumstances). Recent appellate decisions have reaffirmed this doctrine. See McCaul v. McCaul, 2020 NY App. Div. LEXIS 289 (2d Dept 2020)(summary judgment dismissing complaint in the face of evidence that the plaintiff was represented by independent counsel in the divorce action, the parties engaged in financial disclosure in the divorce action, the plaintiff received substantial benefits pursuant to the stipulation of settlement, and the stipulation of settlement recites that it was entered into freely, knowingly, and voluntarily, and that the parties had not been threatened or coerced into entering into it); see also DiPietro v. Vatsky, 177 AD3d 401(1st Dept 2019)(agreement must be so "manifestly unfair" as to warrant equity's intervention). In that regard, a recent decision from the Appellate Division, Fourth Department suggests that trial courts at least in this neck of the woods, should more closely scrutinize separation agreements that are challenged for overreaching under the doctrine set forth in Christian v Christian. In Tuzzolino v. Tuzzolino, 156 AD3d 1402 (4th Dept 2017), the court reviewed a separation agreement challenged by a spouse as unfair and unconscionable. The appellant was not represented by counsel, a factor that the appellate court, described as "while not dispositive . . .a significant factor for us to consider." Id. at The court added that the party seeking to enforce the agreement had failed to make a "full disclosure of the finances of the parties." Id. The parties in Tuzzolino did not complete statements of net worth until after execution of the separation agreement. The proponent of the agreement had two pensions, subject to equitable distribution, which were apparently disclosed, but never valued, prior to the execution of the agreement. The separation agreement also did not provide for any maintenance for plaintiff despite a gross disparity in incomes and the 35-year length of the marriage and, while a modification agreement provided maintenance for plaintiff, it also required plaintiff to [*10]transfer his interest in the marital residence to defendant. Finally, when all was said and done, the proponent ended up with assets valued at $740,000 and the protesting spouse ended up with $77,000 in assets. In response to the challenge based on these facts, the wife argued that the husband wanted an agreement in which each party kept their own assets, an notion rejected by the appeals court as a justification for the apparent disparity in asset distribution. The appeals court reversed the trial court and remitted the matter to Supreme Court to calculate maintenance and equitable distribution.

As this court reads Tuzzolino, a two-step analysis is required in determining whether an agreement passes the Christian v. Christian test. The first step is an analysis of the procedure that produced the agreement: i.e., the access to counsel, the disclosure of finances, whether duress or fraud underlined the agreement.[FN9] If the court finds defects in the procedural process, then the court should examine the actual distribution in the agreement to determine whether it is unconscionable under the Christian test; i.e., such as "no person in his or her senses and not under delusion would make on the one hand, and as 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." Christian v. Christian, supra at 72. In short, if the process was fair, then the court not need to examine the support and distribution issues, as each party will have received the benefit of their fairly-concluded bargain. If the process is unfair, then examination of the merits of support and distribution issues is required and, if the distribution of marital property is manifestly unfair, then the underlying agreement should be vacated, at least as to those terms.

In this court's view, the process followed in this instance — use of a private mediator and the attorney-scrivener — has seldom been the subject of prior judicial review under the Christian v. Christian doctrine.[FN10] In one such case, Massari v. Massari, 2017 NY Misc LEXIS 1125 (Sup.Ct. Westechester Cty 2017), the wife voluntarily participated in divorce mediation. Although the mediator told the wife that she was entitled to maintenance, the agreement in that case contained language nearly identical to the language here: the parties acknowledged that they had been advised by the mediator on several occasions to obtain independent counsel. In that [*11]case, the wife told the mediator that she considered the lack of maintenance "unfair." The Court noted that while the wife in that matter was aware of the opportunity to have the agreement reviewed, her failure to do so did not nullify the agreement nor did it render it unconscionable. See also Korngold v. Korngold, 26 AD3d 358 (2d Dept 2016). Furthermore, the court held that a failure of generosity on the issue of maintenance does not render an agreement unconscionable. Massari v. Massari, at 18. While the Court in Massari eventually concluded that some maintenance was appropriate, the discussion of the mediation process and its impact on a Court's review of the resultant agreement casts some light on the issues here.

The mediation process, utilized here, involves choices by both parties to engage in a process that is designed to be fair and even-handed. The mediator has an obligation to achieve fairness, at least as seen from each parties's perspective. To invalidate the process in this instance requires the court to conclude that a voluntary mediation, conducted with a private mediator, was fundamentally unfair to the wife. The court notes that there is no allegation in the complaint that the wife ever complained about the process during the mediation. There is no evidence that her participation in the mediation was anything but voluntary. There is no allegation in the complaint that the mediator was not the product of a joint choice by this couple. There is no allegation that the mediator was biased.

(A) Impact of the unsigned pre-nuptial document

The wife hinges her claims on an allegation that the prenuptial agreement, not signed by the wife, was the basis for equitable distribution and the support provisions in the agreement. In the separation agreement, the wife acknowledged that the prenuptial agreement "guided specific decisions" regarding the "non-division of premarital real estate and the waiver of spousal support." However, this language of the agreement militates against the argument that the unsigned and unenforceable prenuptial agreement dictated the contents of the separation agreement. First, the language in the separation agreement refers to "pre-marital real estate," which as a matter of law would be separate property, not subject to equitable distribution. DRL §236B(a)(d)(1); Burke v. Burke, 175 AD3d 458,459 (2d Dept 2019). Thus, to that extent, the language only restates the terms of the Domestic Relations Law that would guide the couple in only distributing marital property in the agreement.[FN11]

Second, the language in the agreement refers to "the waiver of spousal support" and suggests that the pre-nuptial agreement dictated such a waiver. The unsigned prenuptial agreement does contain language that both parties mutually waived their right to support from the other. However, the separation agreement does not incorporate the mutual waiver of support contained in the pre-nuptial agreement. The separation agreement contains language in which [*12]the husband agreed that his wife was "presumed to be a candidate for spousal maintenance because of a disparity in incomes (which were disclosed in an exhibit attached to the agreement). The agreement provided that as maintenance for an eight-year marriage and considering the disparity in income, the wife would receive $20,000 in additional retirement benefits. In the same article in the agreement, the wife waived "any and all additional claims against the other for past, present or future maintenance or spousal support." In short, although the husband apparently bargained for a total waiver of maintenance in the unsigned pre-nuptial agreement, he never insisted on the waiver in the separation agreement and the wife waived any claim for maintenance (beyond the $20,000 in additional retirement assets). These facts support the conclusion that the husband did not insisted on an incorporation of the terms of the unsigned prenuptial agreement, but in fact, acknowledged his legal obligation to pay maintenance in the separation agreement.

(B) Lack of Financial Disclosure

The wife similarly never complained, during the mediation process, about the financial disclosure from the husband. The pre-nuptial agreement, albeit not signed, but otherwise initialed by the wife, contains a summary assets of the parties. There is no allegation in the complaint that the wife, during the mediation process, objected to the lack of more definitive disclosure by the husband. The language in the separation agreement also rebuts that suggestion: the wife agreed to language which states that the parties "made a true and complete recitation of all current assets and sources of income." The agreement also expressly provided that until a divorce was entered, the wife had the right to require production of any financial information from the husband, an option she never chose. The agreement contains schedules which list the income of the husband and the wife and a distribution of their assets held by each party. The wife initialed all the pages detailing the income and assets. The schedules were also attached before the signature pages. As a final acknowledgment, the agreement in bold language states:

The parties hereby acknowledge that they believe they have each voluntarily made full disclosure and have each received full disclosure of each other's assets/debts during the mediation process.

In her argument before the court, the wife extends her claims alleging that the husband never provided a statement of net worth as required by DRL 236B(4)(a). In what can be described as an Alice in Wonderland-like "curiouser and curiouser" event — or shoddy lawyering — a statement of net worth was executed on the date the separation agreement was signed. As described earlier, the statement contains the wife's name on the first page, but the statement was signed by the husband and his signature was notarized. In this court's view, the husband's signature on the document means that he converted the representations in the statement into his own financial disclosure. Thus, this statement of net worth complies with DRL 236B(4)(a) and when considered along side the other financial representations in the separation agreement — signed the same day — the husband fulfilled any obligation to his spouse for financial disclosure prior to the entry of the judgment of divorce. There is no allegation that the financial disclosure by the husband — either in the attachments to the agreement or in the sworn statement of net worth — was inaccurate or that the financial affidavit did not accurately describe the marital property. In contrast, the agreement repeated contains acknowledgments by the wife that she had access to necessary financial information. Under the circumstances, the wife's complaint, two years after the agreement was signed, fails to suggest that financial disclosure was not sufficient in the mediation process or sufficient to justify entry of the judgment of divorce.

(C) Lack of the Assistance of Counsel

As a third objection, the wife, reciting the coda of complaints that can defang a separation agreement, argues the wife signed the agreement without her having the independent assistance of counsel.[FN12] In this matter, every signed document before the court at the time of the execution of the judgment of divorce rebuts that claim. In the separation agreement, the wife acknowledges in the preface that she was advised to seek counsel both during the mediation process and thereafter. In Article XIV, the wife admits that the mediator "encouraged" her to retain independent counsel to review the agreement and she admitted she was entering the agreement of her free will. On the signature page, the wife admits she was advised about her right to have counsel, but the couple represented "they have waived such choice with the full knowledge of their actions." Thereafter, the agreement reads:

Each party have instructed their attorneys or have personally chosen on a pro se basis not to take any further steps themselves or through others in connection with discovery, inspection, investigation, appraisal or evaluation of the other's business, property, pension plan or professional practices or licenses, educational degrees and professional certificates.

The wife also signed a waiver in which she acknowledged that she had been advised of her right to counsel and chose to decline it. She signed the judgment of divorce before it was submitted and signed the findings of fact and conclusions of law. In. short, on several occasions, the wife in this matter had ample opportunity to request that independent counsel review any one of the documents. She never did.[FN13] Under these circumstances, it is impossible for this litigant to claim now — two years later — that she never understood her right to have an attorney review the divorce documents.

(D) No evidence of Coercion to Sign the Documents

There is no allegation of any coercion by the husband to require the wife sign the [*13]agreement, the stipulation, the disclosure and waiver, the findings of fact or the judgment roll. There is no allegation that the husband threatened any sanctions if the wife failed to participate in the mediation or failed to sign the agreement or any of the other documents submitted when the attorney filed for the judgment of divorce. The wife makes a bald claim that the husband was "sexist" and was "extremely controlling" during the marriage. But, there is no suggestion that the wife was coerced into signing any documents on September 15, 2016 — the date all the documents were signed in the presence of an attorney — and the signed documents all contain representations to the contrary; i.e., that the wife was signing freely and voluntarily. The court also notes that there is no allegation that the wife at the time of the execution of the agreement had any infirmity — mental lapse, illness or other cognitive impairment — that might have required a more rigorous analysis of the circumstances present at the execution of the agreement.

(E) Conclusion

In short, the documentary evidence, signed by the wife, indicates that the mediation process and the resulting agreement was fair under any reasonable test. Because the process was fair and the wife was informed at every step of the process of her right to either counsel, additional financial disclosure or other information, this court is reluctant to explore the agreed asset allocation under equitable distribution. If pre-litigation mediation of matrimonial disputes has any vitality as an alternative to costly and time-consuming litigation, it will most often, in this court's view, occur under circumstances that parallel those in this case. The spouses will chose a single mediator, meet privately with the mediator, be told in writing that they have a right to assistance of counsel and required financial disclosure. If they request such information — as they been informed they have an unfettered right to do — then, the process will be discontinued or adjourned until that request is fulfilled. However, if they elect to waive that disclosure and freely sign an agreement drafted by the mediator and reciting the fact that the agreement incorporates their voluntary decisions about support and equitable distribution, this court should be wary of invalidating it. The couple can agree further that the separation agreement will be executed through an attorney, who will prepare the pleadings (complaint, answer, statement of net worth, findings of fact and judgment), get the necessary signatures and then submit them for a court' signature. This lower-cost, lower-anxiety process of adults settling their disputes without attorneys has a vital place in overcoming the often arduous process of litigating a divorce. This court, in the face of the extensive language of waivers or disclosure and the assistance of counsel in the underlying agreements, declines to conclude that this process is unfair to the objecting spouse here.

It is impossible for this court to draw an inference that the distribution plan in this agreement was unconscionable when in repeated instances, the wife signed a document attesting otherwise.

5. The Equitable Distribution, as defined in the Agreement, is not unconscionable.

This court, having concluded that the mediation process provided the wife with substantial access to other processionals to evaluate this agreement, nonetheless, as guided by the Appellate Division in Tuzzolino must peek around the corner at the ultimate equitable distribution in. this instance. The wife premises her claim, in part, on the unsigned prenuptial document which lists four properties and three mortgages that were owned by the husband prior to marriage. The failure to distribute any portion of these assets constitutes a significant basis for the wife's claims that the separation agreement was unconscionable. First, the parties recognized in the separation agreement that the marital residence was marital property. In the [*14]agreement, the couple agreed on an estimated fair market value of the marital residence, and divided the net equity, which after deducting the mortgage and expenses, totaled $20,000 for the wife. The wife agreed to take these funds in the form of additional retirement assets. There is no documentary evidence in this record that rebuts the representations of separate property made by the husband in his statement of net worth. When the separate real property assets listed in the husband's statement of net worth are removed from the marital estate and the marital residence's equity transferred, the wife's claims are reduced to maintenance — which was paid in a lump sum in a spin-up from retirement assets — and the marital share of the base retirement assets, which were split equally. Based on this analysis, resulting from a review of all the divorce documents, this court cannot conclude that the final distribution was unconscionable. If the wife ever thought it was unconscionable — or even somewhat unfair — she could have insisted on consulting counsel then, when it would have been appropriate. Instead, she signed a series of documents that state the contrary: she thought the distribution was fair and not unconscionable.

Finally the court notes that even if the motion for summary judgment were denied and this matter proceeded to discovery, the mediation process — central to determining whether overreaching occurred — may be shielded from disclosure.[FN14] This court is wary of plunging a mediator and the attorney scrivener into a carousel of depositions and discovery in an attempt to undermine the mediation process. The mediator's testimony would be critical to analyzing whether the disclosure of finances and other assets occurred during the bargaining over this agreement. Similarly, the attorney-scrivener would be subject to the same inquiries. But, in those circumstances, the neutrality of these chosen professionals, critical to the mediation process, would be undercut and these neutrals would be confronted with a participant's testimony [*15]that contravened the signed documents.[FN15] In short, the entire process of confidential mediation between spouses could be uprooted and this form of alternative dispute resolution compromised.[FN16]

In this court's view, the application here puts the entire pre-litigation mediation concept — the role of the mediator and the attorney scrivener — on trial. This form of dispute resolution is now the preferred manner for divorce resolution in New York and this court embraces that concept:

We as a nation need to do more to expand access to justice for the large number of couples who need divorce, rather than seeking to impede those who help provide such avenues - even if to do so means the abandonment of some venerated notions of the role of lawyers and a challenge to entrenched economic interests. The simplification and democratization of dispute resolution - rather than the preservation of a historic professional monopoly - should be our goal in the century to come.

Collins, supra at 715. To vacate this agreement and void the mediated plan agreed to years ago, would usher the court into the true role of a Monday morning quarterback, reshuffling the monetary cards in this long voided marriage, re-opening the personal and psychological wounds that accompany divorce disputes and foisting new costs into a marriage that ended two years ago. As judges know, it costs almost nothing to begin a marriage — a low fee license and a gratuity to the officiant (maybe). The court system should seek ways to shrink the cost of ending a failed marriage. Mediation, as in this case, is one of those preferred ways. But, in considering cost or convenience alone, the court cannot overlook the requirements for fairness in the process and result. Here, the agreement may not be perfect, the financial disclosure is adequate, but not impressive, the lawyering — having the husband sign the wrong statement of net worth — somewhat sloppy and imprecise, but none of these factors, even stacked on each other, reach the [*16]level of making the wife's assent to this agreement unconscionable. This couple elected to use less expensive and quicker forum of face-to-face encounters in front a neutral mediator to reach an agreement. They utilized one lawyer, acting as a scrivener after full disclosure of her role and the parties' assent to it, to produce the legal documents to end their marriage. The wife, complaining two years later, wants this court to ignore her signatures on a bevy of documents agreeing to this deal and give her a second bite at the apple. The wife's allegations, when measured against documents produced by the husband and filed with the court at the time of the execution of the judgment, foreclose that chance.

In this Court's view, the presumption of validity which attaches to the signed agreement in this instance, is strengthened because of the origin of document in a mediation process. When couples voluntarily participate in mediation with an agreed mediator and reach an agreement on the dissolution of the marriage through back-and-forth consultation in a process that both participants repeatedly acknowledge in writing to be fair at the time it occurs, New York's courts should be even more restrained in vacating such agreements, especailly when a stream of after-the-fact allegations arise two years later by a participant seeking to scotch the deal and get a new chance to negotiate from scratch. Mediation is a not a wave of the future. It is, according to New York's chief judge, a bedrock of today's dispute resolution process: a reasonable process for cost-conscious couple, seeking an alternative to lengthy and expensive litigation to end their marriage. To upend such an agreement should require clear and convincing evidence of a substantial flaw in the process — complete failure of financial disclose, evidence of coercive tactics by a spouse, a biased mediator, a participants's continual complaints during the process — before the agreement is vacated and the couple ordered to return to costly litigation in a re-opened marital dispute.

In this instance, there are insufficient allegations under either the Christian test or clear and convincing evidence under a heightened validity analysis that should attach to the agreement mediated in this instance.

As noted earlier, the wife also brought claims to modify the custody and child support set forth in. the agreement and judgment of divorce. Those claims must be aired through an order to show case under the index number for the divorce action.[FN17] To the extent that they procedurally postured improperly in a separate action, they are dismissed without prejudice. Any claim for attorneys fees is also dismissed.[FN18]

Finding no factual dispute and filed documents and other evidence that rebut the wife's allegations, the motion for summary judgment is granted as to the first claim in the complaint.

Dated: February 5, 2020

_________________________________

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:There is a dispute involving the number of mediation sessions. The wife swears she attended only "two or three" sessions with the mediator. The separation agreement, signed by the wife, states that the mediator conducted four sessions with the couple.

Footnote 2:In the papers submitted on the motion for summary judgment, neither party proffered the actual documents that accompanied the judgment roll in Ontario County. This court, cognizant that it can take judicial notice of documents filed in this matter, retrieved the judgment roll documents from the Ontario County Clerk's Office. These documents included the statement of net worth (discussed infra), the answer, the stipulation, the waiver and disclosure document, and the findings of fact and conclusions of law.

Footnote 3:While there is no evidence of when the couple signed the findings of fact and the judgment of divorce, a reasonable surmise — a euphemism for "guess" — would be that they were signed as part of a one-stop shopping spree on September 15, 2016 along with the other divorce documents.

Footnote 4:The qualified domestic relations order (QDRO) was also signed by the wife and she approved it as to "form and content." Surprisingly, the wife, in her affidavit before this court asserts that she never saw the QDRO.

Footnote 5:In her complaint, the wife asserts that she was never given the Child Support Standards Act (CSSA) and there is no computation of child support. In the agreement, the wife admitted she had been informed of the provisions of the CSSA, acknowledged she had received the actual chart of CSSA obligations and had a full opportunity to discuss it with a licensed attorney. Agreement, Art. II. Schedule A of the agreement contains a child support worksheet, which details the child support. Appendix A contains the Guidelines for Child Support and document entitled "When you deviate from the Child Support Guidelines." The findings of fact, submitted to the court, include a "finding" that "the parties acknowledge that they have understood that the application of CSSA presumptively results in the amount of child support to be paid." The wife signed those findings before they were submitted to the referee. These facts, based on the divorce documents, fully rebut any inference that the child support calculation was a result of overreaching.

Footnote 6:The husband also addresses the question of whether there was a mistake that prompted his wife to enter the agreement. There is no evidence of any mistake, either a unilateral mistake or a mutual mistake, that would void the agreement.

Footnote 7:In reaching the conclusion that the court can take judicial notice in this case, the court acknowledges that the pleadings referenced in this opinion and recovered from the Ontario County Clerk's Office are not pleadings in the current action, which is a plenary action to vacate the underlying separation agreement. But, the documents on file in the Clerk's Office were pleadings in the divorce action which is at the heart of this action. The parties are the same and the issues — the knowledge and understanding of the parties at the time of the execution of the agreement — are derived from these documents. Because of their pertinence and probative value, this court, guided by the cited opinions above takes judicial notice of them even though they are not pleadings in the pending matter and even though they were not referenced by either party in the motions pending before the court.

Footnote 8:At this point, the "presumptive mediation" effort by the Unified Court System is best evidenced by a Press Release from the Chief Administrative Judge, which quotes the state's Chief Judge of the Court of Appeals: Making ADR services widely available in civil court throughout the state and facilitating the use of such services as early as possible in the case or major steps toward a more efficient, affordable and meaningful civil justice process. Interim report and Recommendations of the Statewide ADR Advisory Committee, Statement of Chief Justice Janet DiFiore, May 14, 2019.

Footnote 9:The Christian doctrine creates a threshold focus on whether the process of reaching an agreement was fair. In that respect, the Court called attention to Section 5-311 of the General Obligations Law which require that the agreement be fair and reasonable at the time of its making and not unconscionable at the time of the entry of final judgment.

Footnote 10:In Massari v. Massari, 2017 NY Misc LEXIS 1125 (Sup.Ct. Westechester Cty 2017), the wife voluntarily participated in divorce mediation. Although the mediator told the wife that she was entitled to maintenance, the agreement in that case contained language nearly identical to the language here: the parties acknowledged that they had been advised by the mediator on several occasions to obtain independent counsel. In that case, the wife told the mediator that she considered the lack of maintenance "unfair." The Court noted that while the wife in that matter was aware of the opportunity to have the agreement reviewed, her failure to do so did not nullify the agreement nor did it render it unconscionable. See also Korngold v. Korngold, 26 AD3d 358 (2d Dept 2016). Furthermore, the court held that a failure of generosity on the issue of maintenance does not render an agreement unconscionable. Massari v. Massari, at 18.

Footnote 11:In her affidavit in opposition to the summary judgment motion, the wife lists a series of properties that she claims were marital property and for which she was denied distribution. There is no documentary evidence before the court that they were acquired during the marriage. However, in the unsigned prenuptial "agreement," the husband disclosed that all the real property assets, cited by the wife as "marital," were actually his separate property before the marriage. The wife in the alleged prenuptial agreement did not sign the list from the husband, but she initialed the page. In addition, in the statement of net worth signed by the husband in judgment roll submission, the husband listed each of these real properties, estimated their value, declared them to be separate property and listed the mortgages that encumbered them.

Footnote 12:In Levine v. Levine, 56 NY2d 42 (1982), the Court of Appeals held that if the parties are fully aware of the implications, there was no per se rule preventing attorney from effect representing both parties and drafting the agreement. The Court opined: While the potential conflict of interest inherent in such joint representations suggest that the husband and wife should retain separate counsel, the parties have an absolute right to be represented by the same attorney provided there has been full disclosure between the parties not only of the relevant facts but also of their contextual significance in there has been an absence of an equitable conduct or other infirmity which might vitiate the execution of the agreement. Id. at 48 (citing Christian v. Christian, 42 NY2d at 72).

Footnote 13:The wife also contends that she had divergent interests that required the assistance of counsel, regardless of whether she exercised that right. Significantly, there is some commentary, spilling over from the Court of Appeals decision in Levine v. Levine — that once mediation is concluded, the parties have a unified — rather than separate — interest. At the moment consensus on all points is reached in mediation, husband and wife no longer have any conflict of interest - - but rather share a single concern and finishing the document that will memorialize their agreements and having the papers prepared to process their divorce. New York Civil Practice: Matrimonial Action §28.02 (i) (2019).

Footnote 14:JUD. LAW §849-b. This court notes that this statutory language is found in. a provision related to Community Dispute Resolution Centers and, by its express terms, may only apply to mediations in. that designated context. However, in. this court's view, the expanded notion of mediation, advanced by the Chief Judge of the Court of Appeals and the Office of Court Administration, strongly suggests that the confidentiality of mediation proceedings should apply to the mediation that occurred here. As one court commented: The goal of the Legislature in. creating these centers was to provide a "quick, inexpensive and voluntary resolution of disagreements, while at the same time serving the overall public interest by permitting the criminal justice community to concentrate its resources on more serious criminal matters." (1981 McKinney's Session Laws of [***4] NY, at 2630.) It was the feeling of the Legislature that in. order for such programs to be successful, the parties availing themselves of the services of these forums must feel that they can air their disputes "in. an informal atmosphere without restraint and intimidation." People v. Snyder, 129 Misc 2d 137 (Sup. Ct. Erie Cty 1985). If the mediation process, as envisioned by either the Legislature or the Office of Court Administration in. its "presumptive mediation" rules, were subject to an invasion through disclosure, depositions and other devices, the entire purpose of mediation — as the alternative to litigation — would be extinguished.

Footnote 15:The CPLR explicitly renders compromises and offers to compromise, along with evidence of any conduct or statement made during negotiations, inadmissible. CPLR 4547. The issue of a mediator's confidentiality remains after the Court of Appeals decision in Hauzinger v. Hauzinger, 10 NY3d 923 (2008). In that case, the Appellate Division, Fourth Department, held that a court did not abuse its discretion when it refused to quash a subpoena directing that a mediator appear for a deposition and respond to a subpoena duces tecum. Hauzinger v. Hauzinger, 43 AD3d 1289 (2007). The Appellate Division refused to quash the subpoena as "a matter of public policy" because New York has never enacted Uniform Mediation Act, which would otherwise make the mediation terms confidential. See First Impressions: Drafting Effective Mediation Statement, 22 Lewis & Clark L. Rev. 158 (2018)(Multiple provisions of the UMA aim to ensure the confidentiality of the mediation process, specifically protecting mediation communications). The Court of Appeals, while affirming the Appellate Division, did so on more narrow grounds, concluding that the parties, either in an express waiver or by seeking disclosure of matters related to the mediation on their own initiative, had waived the confidentiality privilege. However the court expressly stated that it would not address what if any mediation confidentiality privilege existsunder CPLR 3101(b).

Footnote 16:The husband, in opposing this application, also argues that the wife by accepting payments and other benefits under this agreement, has ratified its contents and waived any objection to its terms. See Beutel v Beutel, 55NY2d 957 (1982); Bucceri v. Stratton, 2018 NY Misc LEXIS 4721 (Sup. Cr. Genesee Cty 2018). The wife having accepted all the benefits under this agreement has ratified the agreement to this agreement as well.

Footnote 17:The child support provision in the separation agreement incorporating a judgment divorce but not merged therein may be modified only within the matrimonial action and not in a plenary action. Gusler v. Gusler, 183 AD2d 1070 (3d Dept 1992).

Footnote 18:An action to obtain the rescission, modification or nullification of a separation agreement is not a matrimonial action for which counsel fees can be awarded under the Domestic Relations Law. See Fine v. Fine, 26 AD3d 406 (2d Dept 2006)(plenary action seeking to modify an agreement incorporated but not merged into judgment is not a matrimonial action); Matter of Drake v. Drake, 94 AD2d 768 (2d Dept 1983).