Dawes v. Dawes

• Decision Date: 04 October 2013
• Citation: 973 N.Y.S.2d 504,110 A.D.3d 1450,2013 N.Y. Slip Op. 06456
• Parties: Felicia DAWES, Plaintiff–Respondent, v. Thomas E. DAWES, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1450

973 N.Y.S.2d 504

2013 N.Y. Slip Op. 06456

Felicia DAWES, Plaintiff–Respondent,

v.Thomas E. DAWES, Jr., Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 4, 2013.

Hogan & Willig, PLLC, Amherst (Kevin S. Mahoney of Counsel), for Defendant–Appellant.

Cotter & Cotter, P.C., Williamsville (David B. Cotter of Counsel), for Plaintiff–Respondent.

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS AND WHALEN, JJ.

MEMORANDUM:

The parties entered into a separation agreement (hereafter, agreement) on September 18, 2007 and, on December 19, 2011, plaintiff wife moved by order to show cause to rescind it. Following a hearing, Supreme Court vacated the agreement on the grounds that plaintiff signed it under duress and it was the product of defendant husband's overreaching. We affirm.

“ ‘Judicial review [of separation agreements] is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions' ” ( Skotnicki v. Skotnicki, 237 A.D.2d 974, 974, 654 N.Y.S.2d 904, quoting Christian v. Christian, 42 N.Y.2d 63, 71–72, 396 N.Y.S.2d 817, 365 N.E.2d 849). “[S]eparation agreements will be scrutinized ‘to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity’ ” ( Tchorzewski v. Tchorzewksi, 278 A.D.2d 869, 870, 717 N.Y.S.2d 436;see Skotnicki, 237 A.D.2d at 974–975, 654 N.Y.S.2d 904;see also Christian, 42 N.Y.2d at 72, 396 N.Y.S.2d 817, 365 N.E.2d 849). “A separation agreement ‘may be vacated if it is manifestly unfair to one party because of the other's overreaching or where its terms are unconscionable’ ” ( Tchorzewski, 278 A.D.2d at 870, 717 N.Y.S.2d 436).

We agree with defendant that plaintiff did not sign the agreement under duress. Plaintiff's allegations that defendant threatened to evict her from the marital residence if she did not sign the agreement and that he threw the agreement at her are not substantiated by proof sufficient to justify setting it aside ( see Christian, 42 N.Y.2d at 71–73, 396 N.Y.S.2d 817, 365 N.E.2d 849;see also Weimer v. Weimer, 281 A.D.2d 989, 989, 722 N.Y.S.2d 328). Further, even accepting plaintiff's allegation that defendant persistently urged her to sign the agreement, such conduct does not constitute duress, particularly inasmuch as plaintiff signed the agreement after defendant revised it in accordance with her suggested changes.

We conclude, however, that the court properly determined that the agreement was “ ‘one 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’ ” ( Colello v. Colello, 9 A.D.3d 855, 859, 780 N.Y.S.2d 450, quoting Christian, 42 N.Y.2d at 71, 396 N.Y.S.2d 817, 365 N.E.2d 849;see Skotnicki, 237 A.D.2d at 975, 654 N.Y.S.2d 904). As defendant correctly concedes, the agreement gives him almost all of the marital property, including his pension and retirement assets, and we note...