McKenna v. McKenna

• Decision Date: 15 October 2014
• Docket Number: 2013-01105, Index No. 203698/11.
• Citation: 121 A.D.3d 864,2014 N.Y. Slip Op. 06951,994 N.Y.S.2d 381
• Parties: Alexander McKENNA, respondent, v. Ann Marie McKENNA, appellant.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 864

994 N.Y.S.2d 381

2014 N.Y. Slip Op. 06951

Alexander McKENNA, respondent

v.Ann Marie McKENNA, appellant.

2013-01105, Index No. 203698/11.

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

Oct. 15, 2014.

Clifford J. Petroske, P.C., Bohemia, N.Y. (Michael Meyers of counsel), for appellant.

Rand P. Schwartz, Massapequa, N.Y., for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.

Opinion

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Reilly, J.), dated November 29, 2012, which denied her motion to vacate the parties' prenuptial agreement and for an award of pendente lite maintenance and counsel fees, and granted the plaintiff's cross motion for summary judgment declaring the parties' prenuptial agreement to be valid and enforceable.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof granting the plaintiff's cross motion for summary judgment declaring the parties' prenuptial agreement to be valid and enforceable, and substituting therefor a provision denying the cross motion, and (2) by deleting the provision thereof denying those branches of the defendant's motion which were for an award of pendente lite maintenance and counsel fees; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of the those branches of the defendant's motion which were for an award of pendente lite maintenance and counsel fees.

The parties were married on February 14, 1997. Shortly before their marriage, on February 4, 1997, they entered into a prenuptial agreement. The agreement provided, inter alia, that, in the event of separation or divorce, each party waived the right to the other's separate property, including property acquired from the proceeds of separate property acquired during marriage; the defendant waived any interest in the marital home, which had been owned by the plaintiff before the marriage, as well as any interest in the plaintiff's annual bonus and retirement account; and the plaintiff's maintenance obligation would be limited to a lump sum payment of between $5,000 and $25,000, depending on the length of the marriage. The agreement further provided that the plaintiff would pay the defendant's reasonable counsel fees in any matrimonial action, unless the defendant challenged the agreement.

In December 2011, the plaintiff commenced this action for a divorce and ancillary relief. The defendant moved to vacate the prenuptial agreement on the basis that it was unenforceable on the ground, among others, that the plaintiff never disclosed the value of his assets, and for an award of pendente lite maintenance and counsel fees. The plaintiff cross-moved for summary judgment declaring that the prenuptial agreement was valid and enforceable. The Supreme Court denied the defendant's motion, and granted the plaintiff's cross motion.

In determining a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party (see Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ) and afford such party the benefit of every favorable inference (see Ruiz v. Griffin, 71 A.D.3d 1112, 1115, 898 N.Y.S.2d 590 ; Franklin v. 2 Guys From Long Pond, Inc., 50 A.D.3d 846, 858 N.Y.S.2d 186 ). A “motion for summary judgment ‘should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility’ ” (Ruiz v. Griffin, 71 A.D.3d at 1115, 898 N.Y.S.2d 590, quoting Scott v. Long Island Power Auth., 294 A.D.2d 348, 348, 741 N.Y.S.2d 708 ).

An agreement between spouses which is fair on its face will be enforced according to its terms unless there is proof of unconscionability, or fraud, duress, overreaching, or other inequitable conduct (see Christian v. Christian, 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 365 N.E.2d 849 ; Petracca v. Petracca, 101 A.D.3d 695, 697–698, 956 N.Y.S.2d 77 ; Rabinovich v. Shevchenko, 93 A.D.3d 774, 775, 941 N.Y.S.2d 173 ). “An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and 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” (Morad v. Morad, 27 A.D.3d 626, 627, 812 N.Y.S.2d 126 ; see Cioffi–Petrakis v. Petrakis, 72 A.D.3d 868, 868–869, 898 N.Y.S.2d 861 ).

Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law by submitting, inter alia, the agreement, which appeared fair on its face and set forth express representations stating that, among other things, it was not a product of fraud or duress, each party had made full disclosure to the other and was represented by independent counsel, and they had fully discussed and understood its terms (see Cioffi–Petrakis v. Petrakis, 72 A.D.3d at 869, 898 N.Y.S.2d 861 ; Schultz v. Schultz...