Levine v. Levine
| Decision Date | 18 May 1982 |
| Citation | 56 N.Y.2d 42,451 N.Y.S.2d 26,436 N.E.2d 476 |
| Parties | , 436 N.E.2d 476 Myrna P. LEVINE, Respondent, v. Terry J. LEVINE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
We are asked on this appeal to determine whether the fact that a separation agreement was prepared by one attorney representing both the husband and wife is sufficient, in and of itself, to establish overreaching requiring a rescission of the agreement.
The parties were married on October 18, 1958 and have two children. Due to a variety of differences, the couple separated in 1971. On February 17, 1976, they entered into a separation agreement. At the time, the husband was operating an auto supply parts business and, according to the record, was earning $20,000 per year. The wife was employed as a bookkeeper for her husband's business and earned approximately $170 per week.
The separation agreement provided, among other things, that the wife was to retain custody of the children. The wife was also awarded the right to occupy the marital residence and ownership of all the furniture therein was transferred to her. The husband agreed to pay $125 per week in support for the wife and the two children. In addition, the husband agreed to pay for the children's private education, health insurance, clothing and medical bills. The husband also assumed all carrying charges on the marital residence, including taxes and mortgage interest payments, and agreed to provide the wife with the free use of a Cadillac automobile. For her part, the wife agreed to transfer her half interest in a boat owned by the couple. Although the boat had a market value of between $40,000 and $50,000, it was encumbered by a substantial mortgage.
The separation agreement was prepared by an attorney, related to the husband by marriage, who had previously represented the husband in connection with his business and who had known both parties for a number of years. The husband initially contacted the attorney and informed him that he had discussed the possibility of a separation agreement with his wife and that the couple had agreed on the essential terms. The attorney then arranged to meet with the wife at his office.
At this meeting, the attorney told the wife that he was involved in the matter only because the basic terms of the agreement had already been settled by the parties and that the wife was free to seek the advice of another attorney. Based on conversations with both parties, the attorney prepared a draft agreement. Further negotiations and consultations followed, after which a final agreement was drawn up, thoroughly reviewed by plaintiff, and then signed by her.
On June 14, 1976, the parties executed an amendment to the separation agreement in order to arrange for the sale of the marital residence and the purchase of a second house. A second amendatory agreement, dated November 19, 1976, provided for the transfer of the Cadillac referred to in the original agreement to plaintiff. The husband, based on the 1976 separation agreement, obtained a conversion divorce (see Domestic Relations Law, § 170, subd. ) on August 23, 1977.
The wife then commenced this action seeking to have the separation agreement and the two subsequent modifications thereof set aside as "inequitable" and "unconscionable". In her complaint, the wife alleged that she "was not represented by counsel of her own choosing, but instead and without her consent was represented by the defendant's attorney" in the execution of the separation agreement and subsequent modifications. The wife further alleged that the husband "coerced and exerted undue influence and overreaching on the plaintiff" such that "plaintiff's use of defendant's attorney was not a choice freely made by plaintiff."
After a nonjury trial, the wife's complaint was dismissed for failure to make out a prima facie case. The court found no evidence of coercion, undue influence or overreaching practiced by the husband. The court also concluded that the agreement was fair, and a specific finding was made that the attorney had "managed to preserve neutrality" throughout his joint representation of the couple.
On appeal, a unanimous Appellate Division reversed, on the law and the facts, and granted the wife judgment setting aside the separation agreement. After noting that the wife was represented by her husband's counsel, the court below stated: "Upon this record, we conclude that the circumstances evince a sufficient degree of overreaching on the part of the husband to require that this separation agreement be set aside." (83 A.D.2d 606, 441 N.Y.S.2d 299.) There should be a reversal.
At the outset, it should be noted that, in the posture in which this case comes before us, the standard of review is rather limited. Where, as here, the Appellate Division reverses "on the law and the facts" and makes new findings, we must examine the record to determine whether the weight of the credible evidence supports the trial court's findings or the new findings made by the Appellate Division. (N.Y.Const., art. VI, § 3, subd. a; CPLR 5501, subd. In our view, the weight of the evidence supports the finding made by the trial court that the separation agreement was not the product of overreaching by the husband. Moreover--and this would be fatal to the wife's claim, as a matter of law--there was no factual determination at the Appellate Division that the terms of the agreement were unfair to the wife. To establish her entitlement to the relief which she seeks, the wife would have to demonstrate both overreaching and unfairness.
For the most part, a separation agreement which is regular on its face will be recognized and enforced by the courts in much the same manner as an...
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