Hardenburgh v. Hardenburgh

• Decision Date: 20 February 1990
• Citation: 158 A.D.2d 585,551 N.Y.S.2d 552
• Parties: Shirley HARDENBURGH, Respondent, v. Franklin HARDENBURGH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 552

551 N.Y.S.2d 552

158 A.D.2d 585

Shirley HARDENBURGH, Respondent, v. Franklin HARDENBURGH, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 20, 1990.

Pachman & Oshrin, P.C., Commack (Arthur Pachman and Alan D. Oshrin, of counsel), for appellant.

Jacoby & Meyers, Ronkonkoma (Francine H. Moss, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals from so much of an order of the Supreme Court, Suffolk County (Hurley, J.), dated June 28, 1988, as denied his motion to modify a judgment of the same court (Abrams, J.) entered May 23, 1986, which was based on a written stipulation of settlement.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff wife is currently about 68 years old, and the defendant is currently about 70 years old. They were married in 1941. On April 7, 1986, after two meetings with the plaintiff to discuss the terms thereof, the defendant, an engineer who elected to proceed pro se, and the plaintiff, who was represented by counsel, entered into a written stipulation of settlement. Both meetings occurred in the offices of the plaintiff's attorney and the signed stipulation was subsequently incorporated but not merged in the judgment of divorce. The judgment and stipulation provided, inter alia, (1) with respect to equitable distribution, the plaintiff was to receive 50% of the defendant's pension benefits when the defendant retired, that share to be unaffected by the remarriage of either party, and (2) with respect to maintenance, the defendant was required to pay to the plaintiff $1,250 every two weeks (payable every other Thursday) until the sale of the marital residence, at which time the payments were to be reduced to $900 every two weeks. The marital residence was sold in March 1987, the proceeds were divided equally, and the maintenance payments were reduced accordingly.

The defendant remarried in February 1987. In January 1988 he moved (1) to set aside the stipulation on the grounds, inter alia, that it was unconscionable, and (2) for a downward modification of the maintenance obligation on the ground of extreme hardship. The Supreme Court denied the motion and this appeal ensued.

Relief from a stipulation of settlement will only be granted upon a showing of good cause sufficient to invalidate a contract (see, Daniels v. Banks, 136 A.D.2d 675, 523 N.Y.S.2d 1013; Sontag v. Sontag, 114 A.D.2d 892, 495 N.Y.S.2d 65). Moreover, " '[s]tipulations of settlement are favored by the courts and not lightly cast aside (see Matter of Galasso, 35 N.Y.2d 319, 321 [361 N.Y.S.2d 871, 320 N.E.2d 618]' " ( Sontag v. Sontag, supra, at 893, 495 N.Y.S.2d 65). Nevertheless, the courts will strictly scrutinize separation agreements "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" ( christIan v. chrisTIan, 42 n.y.2D 63, 72, 396 n.y.s.2D 817, 365 n.e.2D 849). Actual fraud need not be shown if the agreement is manifestly unfair to a spouse because of the other party's overreaching. Thus, the courts will look at the terms of a separation agreement to see if there is an inference, or even a negative inference, of overreaching in its execution ( see, Christian v. Christian, supra, at 71-73, 396 N.Y.S.2d 817, 365 N.E.2d 849)...