Horrell v. Horrell

• Decision Date: 18 May 2010
• Citation: 900 N.Y.S.2d 666,73 A.D.3d 979
• Parties: Neal David HORRELL, appellant, v. Wanda Jean Behrens HORRELL, respondent.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 666
73 A.D.3d 979

Neal David HORRELL, appellant,
v.
Wanda Jean Behrens HORRELL, respondent.

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

May 18, 2010.

900 N.Y.S.2d 667

Mauro Goldberg & Lilling LLP, Great Neck, N.Y. (Barbara D. Goldberg of counsel), for respondent.

73 A.D.3d 979

In an action for a divorce and ancillary relief and to set aside a separation agreement dated August 17, 2004, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Lubell, J.), entered December 22, 2008, as, upon a decision of the same court entered August 13, 2007, made after a hearing, is in favor of the

73 A.D.3d 980

defendant and against him incorporating the separation agreement into the judgment.

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

As general rule, a party's competence to enter into a binding contract is presumed ( see Preshaz v. Przyziazniuk, 51 A.D.3d 752, 858 N.Y.S.2d 290). The burden of proving incompetence is on the party asserting it ( see Weissman v. Weissman, 42 A.D.3d 448, 450, 839 N.Y.S.2d 798; Smith v. Comas, 173 A.D.2d 535, 570 N.Y.S.2d 135). To set aside a separation agreement or a stipulation of settlement in a divorce action on the ground of lack of capacity, the party must establish that, at the time of the making of the agreement or stipulation, the party "was suffering from a mental illness or defect which rendered [the party] incapable of comprehending the nature of the transaction or making a rational judgment concerning the transaction, or that by reason of mental illness [the party] was unable to control [his or her] conduct" ( Lukaszuk v. Lukaszuk, 304 A.D.2d 625, 625, 757 N.Y.S.2d 479; see generally Ortelere v. Teachers' Retirement Bd. of City of N.Y., 25 N.Y.2d 196, 202-205, 303 N.Y.S.2d 362, 250 N.E.2d 460).

Based on the evidence at the hearing, and giving due deference to the Supreme Court's assessment of the witnesses' credibility ( see Amiel v. Amiel, 239 A.D.2d 532, 533, 657 N.Y.S.2d 763; Smith v. Comas, 173 A.D.2d at 535-536, 570 N.Y.S.2d 135), the Supreme Court properly determined that the plaintiff failed to demonstrate that the parties' separation agreement should be set aside on the ground that he lacked the requisite mental capacity at the time the agreement was executed. In contrast to the somewhat conclusory testimony of the plaintiff's expert that the plaintiff's bipolar disorder and attention deficit...