Hoffer-Adou v. Adou, 13362, 312824/12.

• Decision Date: 30 October 2014
• Docket Number: 13362, 312824/12.
• Citation: 121 A.D.3d 618,2014 N.Y. Slip Op. 07436,997 N.Y.S.2d 7
• Parties: Marcela HOFFER–ADOU, Plaintiff–Respondent, v. Azouhouni ADOU, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 618

997 N.Y.S.2d 7

2014 N.Y. Slip Op. 07436

Marcela HOFFER–ADOU, Plaintiff–Respondent

v.Azouhouni ADOU, Defendant–Appellant.

13362, 312824/12.

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

Oct. 30, 2014.

Azouhouni Adou, appellant pro se.

Rapaport Law Firm, PLLC, New York (Marc A. Rapaport of counsel), for respondent.

MAZZARELLI, J.P., ACOSTA, SAXE, RICHTER, CLARK, JJ.

Opinion

Judgment of divorce, Supreme Court, New York County (Deborah A. Kaplan, J.), entered May 23, 2013, awarding plaintiff sole right, title and possession of the marital residence, which brings up for review an order, same court and Justice, entered February 14, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiff wife's summary judgment motion for a judgment of divorce, found the parties' separation agreement to be valid and enforceable, and granted plaintiff wife exclusive occupancy of the marital residence, unanimously affirmed, without costs.

The mutual waiver of maintenance provision in the parties' separation agreement was not unfair and unreasonable when made, and is not now unconscionable. Although the husband's stated income at the time the parties signed the separation agreement was $10,000 and the wife's was $60,000, the husband acknowledged that consideration for his waiver of maintenance included a reduced child support monthly payment of $50 and a payment of $60,000 for the transfer of title to the marital residence. Under these circumstances, we cannot find that the inequality was “so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense” (McCaughey v. McCaughey, 205 A.D.2d 330, 331, 612 N.Y.S.2d 579 [1st Dept.1994] [internal quotation marks omitted] ).

We find no merit to the husband's claim, which was not asserted in either his answer or opposing papers, that the waiver of maintenance provision in the separation agreement rendered him at risk of becoming a public charge (see General Obligations Law § 5–311 ). The husband acknowledged in the separation agreement that he was self-supporting, and there was no evidence that he would not be able to support himself, since the record indicates that he was capable of earning in excess of $50,000, as evident by his previous employment as a musical director. Supreme Court had ample basis to reject his affidavit as an insufficient effort to avoid the consequences of his prior testimony before the Family Court that he was a self-supporting musician, with an annual income of $40,000 (see Caraballo v. Kingsbridge Apt. Corp., 59 A.D.3d 270, 873 N.Y.S.2d 299 [1st Dept.2009] ).

The husband is estopped from challenging the validity of the separation agreement, since he had accepted substantial benefits due under the agreement for a period of almost three years before challenging it as unconscionable (see Mahon v. Moorman, 234 A.D.2d 1, 2, 650 N.Y.S.2d 153 [1st Dept.1996] ; Groper v. Groper, 132 A.D.2d 492, 496–497, 518 N.Y.S.2d 379 [1st Dept.1987] ).

The wife was entitled to ownership of the marital residence,...