Pelkey v. Pelkey
| Decision Date | 31 December 1980 |
| Citation | 79 A.D.2d 835,435 N.Y.S.2d 138 |
| Parties | Domenica PELKEY, Appellant, v. Wesley J. PELKEY, Respondent. (And One Other Action.) |
| Court | New York Supreme Court — Appellate Division |
Andrew F. Capoccia, and Robert W. Kahn, Albany, for appellant.
Rowley & Forrest, Albany (Thomas J. Forrest, Albany, of counsel), for respondent.
Before GREENBLOTT, J. P., and SWEENEY, KANE, MIKOLL and CASEY, JJ.
Appeal and cross appeals from two judgments of the Supreme Court, entered June 29, 1979 and July 9, 1979 in Albany County, upon a decision of the court at a Trial Term, without a jury, which dismissed the complaint of Domenica Pelkey seeking to set aside a separation agreement with Wesley Pelkey, granted Wesley Pelkey a conversion divorce based upon the separation agreement, and ordered him to pay Domenica Pelkey's counsel fees.
Plaintiff husband and defendant wife were married in 1955. There were five children of the marriage. In 1975, the parties separated and each retained counsel who eventually commenced negotiations on their behalf to settle their marital differences. Temporary alimony was sought and secured for the wife. In the midst of these transactions, the husband delivered to the wife's attorney his personal and partnership tax returns for 1972, 1973 and 1974. These were examined by the wife's attorney together with other financial records demanded by him. The 1974 joint tax return indicates that the parties' adjusted gross income was $71,742. A separation agreement was signed by the parties on March 17, 1976. Under the agreement, the husband conveyed to the wife their marital residence, which was appraised at a value between $50,000 and $63,000, and a 1973 Toyota. The following payments were also to be made to the wife: $700 a month until the youngest child reached 21 years of age and $433.33 a month thereafter; two lump sum payments of $1,000 each; medical insurance coverage for the wife and children; mortgage payments on the house from February 1, 1976 until the youngest child reached 21; insurance premiums on two policies covering the husband's life, and $150 per child per month until the child is emancipated or reaches 21. If the child was away at college then the monthly payment would be $108 per month. The husband also agreed to pay the wife's counsel fees of $3,500.
The husband and wife additionally agreed to pay for their own legal expenses if either sought a divorce against the other except that if the wife sought a divorce pursuant to section 170 (subd. (5)) of the Domestic Relations Law and the husband contested it, she might then seek counsel fees. A right was reserved to the wife to seek modification of the agreement for changed circumstances after her last surviving child became 21.
The wife subsequently commenced an action seeking to set the agreement aside because the husband failed to make a full disclosure of his financial status to her and exercised undue influence over her prior to its signing. It was further alleged that the terms of the agreement were unconscionable. She also sought to impose a constructive trust on the husband's vacation property. The husband in turn commenced an action for divorce based on the separation agreement.
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