Tchorzewski v. Tchorzewski

• Decision Date: 27 December 2000
• Citation: 717 N.Y.S.2d 436
• Parties: (A.D. 4 Dept. 2000) Raymond P. Tchorzewski, Plaintiff-Respondent, v. Mary C. Tchorzewski, Defendant-Appellant. CA 00-01508. (Erie Co.) : FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 436

717 N.Y.S.2d 436 (A.D. 4 Dept. 2000)

Raymond P. Tchorzewski, Plaintiff-Respondent, v. Mary C. Tchorzewski, Defendant-Appellant.

CA 00-01508. (Erie Co.)

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

December 27, 2000.

Leonard Berkowitz, Orchard Park, for defendant-appellant.

Daniel J. Chiacchia, Hamburg, for plaintiff-respondent.

PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, WISNER AND LAWTON, JJ.

MEMORANDUM:

The parties were married in 1973 and have two emancipated children. On November 25, 1998, plaintiff signed a separation agreement that was prepared by his attorney. Defendant, who was not represented by counsel, signed the agreement on November 27, 1998. In July 1999 plaintiff was granted a default divorce. Supreme Court erred in failing to rescind the separation agreement in which defendant agreed to waive any claim to plaintiff's pension in exchange for $15,000, the furniture in the marital residence and her own 401K account, and agreed to maintenance of $100 per week for a period of two years. Defendant contended that the agreement is unconscionable because she was not represented by counsel when she signed the agreement and was not aware that the marital portion of plaintiff's pension then had a value in excess of $200,000.

At the hearing on this issue, defendant testified that she was never informed of the value of plaintiff's pension before she signed the agreement. Plaintiff's attorney testified that she had not valued plaintiff's pension when she drafted the separation agreement.

"[S]eparation agreements will be scrutinized 'to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity'" (Skotnicki v. Skotnicki, 237 AD2d 974, 974-975, quoting Christian v. Christian, 42 NY2d 63, 72). A separation agreement "may be vacated if it is manifestly unfair to one party because of the other's overreaching or where its terms are unconscionable, or there exists fraud, collusion, mistake, or accident" (Frank v. Frank, 260 AD2d 344). The fact that defendant was not represented by counsel "does not, by itself, invalidate the agreement" (Battista v. Battista, 105 AD2d 898, 899), but it is a "significant factor to be taken into consideration in determining whether the separation agreement was freely and fairly entered into" (Skotnicki v. Skotnicki, supra, at 975).

The separation agreement provides that each pa...