Giustiniani v. Giustiniani

• Decision Date: 14 December 2000
• Citation: 278 A.D.2d 609,719 N.Y.S.2d 139
• Court: New York Supreme Court — Appellate Division
• Parties: DOMENICA GIUSTINIANI, Appellant,<BR>v.<BR>DAVID GIUSTINIANI, Respondent.

278 A.D.2d 609

719 N.Y.S.2d 139

DOMENICA GIUSTINIANI, Appellant,

v.DAVID GIUSTINIANI, Respondent.

Mugglin, J.

Decided December 14, 2000.

Mercure, J.P., Spain, Carpinello and Rose, JJ., concur.

Mugglin, J.

Supreme Court granted defendant's motion to dismiss plaintiff's complaint at the close of her proof in this action to set aside a separation agreement. Commencing in 1978, the parties lived together in a home owned by plaintiff, with her two sons from a previous marriage. In 1979, upon learning that plaintiff was pregnant with their daughter, defendant moved out. Also, in 1979, plaintiff gave the Ulster County Department of Social Services a mortgage lien against her house in the sum of $30,000. Plaintiff claims that this was necessitated by the expenses attendant with the birth of their daughter, despite the fact that the record reflects that she received social services benefits for a period of approximately four years. Also, in 1979, defendant established his automotive repair business. Subsequently, the parties reconciled and were married in 1984 and thereafter resided in a residence acquired by defendant prior to the marriage. Plaintiff worked for defendant's business from about 1989 until the parties separated in 1993. Plaintiff was not compensated for her services of cleaning the business premises or bookkeeping for the first year, but thereafter received a salary. All business and personal expenses of the parties were paid from the checking account at the business and both parties had the ability to write and sign checks. The parties filed joint income tax returns during the marriage.

As a result of difficulties in the marriage, both parties mutually agreed to separate. In 1993, defendant obtained a form of a separation agreement from a friend and he and plaintiff discussed both the rough draft of this agreement and the final typed copy. About one week after receipt of the final draft, plaintiff added handwritten provisions awarding her $150 per week maintenance for one year, $150 per week child support during the minority of their daughter, and health insurance benefits for herself and their daughter. Neither party was represented by counsel at this time, although plaintiff had consulted counsel approximately three months previous thereto. On the occasion of her first divorce, plaintiff had been represented by counsel and had executed a separation agreement.

Plaintiff first asserts that Supreme Court erred in not setting aside the separation agreement because it is the product of overreaching, its terms being unfair and unconscionable. It is well settled that an agreement resolving issues of equitable distribution may be set aside as unconscionable if it manifests unfairness suggesting that the distribution of assets is "`"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, 42 NY2d 63, 71 [citations omitted]). Plaintiff claims that the agreement is unconscionable because she received no share of the automobile repair business, marital residence or boat, and the agreement did not require defendant to pay any share of the Social Services lien on her residence.

First, we observe that plaintiff failed to produce any competent evidence of the value of the business, residence or boat, and her testimony concerning the origin of this social services lien is unpersuasive. Moreover, since the business...