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Victor Barocas, Plaintiff-Respondent v. Deborah Barocas

April 17, 2012

VICTOR BAROCAS, PLAINTIFF-RESPONDENT,
v.
DEBORAH BAROCAS, DEFENDANT-APPELLANT.



Barocas v Barocas

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 17, 2012

Andrias, J.P., Friedman, DeGrasse, Freedman, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered May 4, 2011, which denied defendant wife's motion for summary judgment declaring void the parties' November 1, 1995 prenuptial agreement, affirmed, without costs.

We reject defendant's contention that the property division provisions of the prenuptial agreement are unconscionable. Defendant failed to establish that her execution of the agreement was the result of inequitable conduct on plaintiff's part. Rather, the parties fully disclosed their respective assets and net worth, and the agreement was reviewed by independent counsel, who defendant admits had told her that the agreement was "completely unfair" and advised against signing it (Strong v Dubin, 48 AD3d 232 [2008]; Colyer v Colyer, 26 AD3d 303, 304 [2006]; Cron v Cron, 8 AD3d 186 [2004], lv dismissed 7 NY3d 864 [2006], lv denied 10 NY3d 703 [2008]). The fact that plaintiff's attorney recommended defendant's counsel, and that plaintiff paid her counsel's fees, is insufficient to demonstrate duress or overreaching (see Smith v Walsh-Smith, 66 AD3d 534 [2009], lv denied 14 NY3d 704 [2010]). Defendant's claim that she believed that there would be no wedding if she did not sign the agreement, that the wedding was only two weeks away and that wedding plans had been made, is insufficient to demonstrate duress (see Colello v Colello, 9 AD3d 855, 858 [2004]). Although application of the provisions would result in plaintiff retaining essentially all the property, courts will not set aside an agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided (see Christian v Christian, 42 NY2d 63, 72 [1977]; McCaughey v McCaughey, 205 AD2d 330, 331 [1994]). The circumstances surrounding the execution of the agreement disclose no issue of fact as to whether there was overreaching. We therefore adhere to the general rule that " [i]f the execution of the agreement . . . be fair, no further inquiry will be made'" (Levine v Levine, 56 NY2d 42, 47 [1982], citing Christian, 42 NY2d at 73).

Moreover, "[d]uly executed prenuptial agreements are accorded the same presumption of legality as any other contract" (Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]). We disagree with the dissent's conclusion that there is an issue of fact as to whether the property division provisions of the instant agreement are unconscionable. An unconscionable contract is one "which is so grossly unreasonable as to be unenforcible because of an absence of meaningful choice on part of one of the parties together with contract terms which are unreasonably favorable to the other party" (King v Fox, 7 NY3d 181, 191 [2006]). Here, meaningful choice is not an issue inasmuch as defendant knowingly entered into the agreement against the advice of her counsel.

Although defendant's waiver of spousal support was not unfair or unreasonable at the time she signed the agreement, given her knowing and voluntary execution thereof with benefit of counsel, factual issues exist as to whether the waiver would be unconscionable as applied to the present circumstances (see Domestic Relations Law § 236[B][3][3]). Child support award for the parties' two children has not been established, and it is unclear whether defendant would become a public charge without spousal support (see Cron, 8 NY3d at 187; see also Domestic Relations Law § 236[B][3][3]; General Obligations Law § 5-311; Bloomfield, 97 NY2d at 194). Also, it is unclear whether waiver of all spousal support would result in inequality "so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense" (Christian, 42 NY2d at 71 [internal quotation marks omitted]). In particular, the evidence shows that, despite the 15-year marriage, under the agreement, plaintiff would be entitled to retain property valued at about $4,600,000, while defendant would be entitled to only an IRA account valued at approximately $30,550. She claims that she has no other assets or sources of income, and could no longer work, given that she is now 50 years old and that plaintiff had thwarted her efforts to get a college education and pursue a career during the marriage. Plaintiff, however, contends that defendant chose not to get a college degree or pursue a career, and that, while he supported her various business projects, the projects failed or she would quit after losing interest. Accordingly, we find that issues of fact exist as to whether the maintenance waiver would be unconscionable as applied to the current circumstances. All concur except Freedman and Manzanet-Daniels, JJ. who dissent in part in separate memoranda as follows: MANZANET-DANIELS, J. (dissenting in part)

I agree with the majority that the motion court properly held that an issue of fact exists as to whether maintenance waiver contained in the parties' prenuptial agreement is unconscionable under the standard set forth in section 236(B)(3) of the Domestic Relations Law. I would also find that an issue of fact exists as to whether the property waiver contained in the agreement is unconscionable (see Christian v Christian, 42 NY2d 63 [1977]; Bloomfield v Bloomfield, 281 AD2d 301 [2001], revd on other grounds 97 NY2d 188 [2001]).

Defendant wife was born in Guyana, the second of seven children. She arrived in the United States in 1981, at the age of twenty-one. She obtained a GED in 1982, and worked menial jobs. In 1989, she worked part-time as a receptionist for plaintiff husband's family business. While working there, she and plaintiff began to date, and in 1993, she moved in with plaintiff at his apartment located on Sutton Place. Other than sporadic attempts at small business ventures, the wife did not work outside the home for the duration of the marriage (indeed, to the present day). She has no further education and no special skills.

The parties were married on November 11, 1995. A prenuptial agreement was presented to the wife approximately two weeks prior to the wedding. Schedules attached to the agreement indicated that plaintiff husband had no liabilities and total assets in the amount of approximately $580,000, including a cooperative apartment and an interest in a family trust with an unspecified value. Defendant wife, on the other hand, had only $2,500 in a bank account, jewelry and a fur coat valued at less than $20,000, collectively. Under the terms of the prenuptial agreement, the wife waived any claims to any property that the husband owned or acquired not only prior to, but also subsequent to the marriage. She further waived any right of election. The agreement contained a complete maintenance waiver, irrespective of the length of the marriage or whether the marriage produced children. The agreement also provided that the wife would forfeit any gifts or jewelry she had been given before and during the marriage.

The parties had been married 15 years when the husband initiated divorce proceedings in late 2010. Their sons are presently 14 and 7 years of age.

In January 2011, the wife moved for summary judgment declaring the parties' prenuptial agreement void. The motion court sustained the property division provisions of the prenuptial agreement and determined that her waiver of maintenance was fair and reasonable at the time of the execution of the agreement, but set a hearing to determine whether the maintenance waiver was unconscionable in light of present circumstances.

I agree with the majority that the motion court properly set down for a hearing the issue of whether the maintenance waiver is unconscionable. I would also find, however, that an issue exists as to whether the property division provisions of the prenuptial agreement are unconscionable under the common-law standard. The instant agreement is so one-sided and the inequality "so strong and manifest as to shock the conscience and confound the ...


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