McKeon v. McKeon

• Decision Date: 03 November 2010
• Citation: 78 A.D.3d 667,911 N.Y.S.2d 93
• Parties: Cindy McKEON, respondent, v. Eugene McKEON, appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 93

78 A.D.3d 667

Cindy McKEON, respondent,

v.Eugene McKEON, appellant.

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

Nov. 3, 2010.

Stephen I. Silberfein, P.C. (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for appellant.

Farrauto, Berman & Slater, Yonkers, N.Y. (John P. Farrauto, Cheryl Slater, and Gretchen Mullins Kim of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ.

In an action for a divorce and ancillary relief, the defendant husband appeals from an order of the Supreme Court, Westchester County (Walker, J.), entered September 2, 2009, which granted that branch of the plaintiff wife's motion which was, ineffect, to vacate the parties' postnuptial agreement dated November 25, 2005, on the ground that it is void as against public policy, and denied the defendant husband's cross motion, in effect, for summary judgment determining that the subject postnuptial agreement is valid.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff wife's motion which was, in effect, to vacate the parties' postnuptial agreement dated November 25, 2005, on the ground that it is void as against public policy, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying the defendant's cross motion and substituting therefor a provision granting the cross motion to the extent of awarding partial summary judgment to the defendant husband determining that the subject postnuptial agreement is not void as against public policy; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing on the issue of whether the postnuptial agreement is void as unconscionable.

Contrary to the Supreme Court's conclusion, the parties' postnuptial agreement does not violate public policy, as it does not prevent the wife from commencing an action for a divorce ( cf. Corso v. Corso, 21 Misc.3d 1102[A], 2008 N.Y. Slip Op. 51917[U], 2008 WL 4308291; P.B. v. L.B., 19 Misc.3d 186, 855 N.Y.S.2d 836). Therefore, the husband satisfied his prima facie burden of establishing his entitlement to judgment as a matter of law on the issue of whether the postnuptial agreement did not violate public policy. In opposition, the wife failed to raise a triable issue of fact ( see...