Wile v. Wile

• Decision Date: 23 April 1984
• Docket Number: No. 2,No. 1,1,2
• Citation: Wile v. Wile, 474 N.Y.S.2d 821, 100 A.D.2d 932 (N.Y. App. Div. 1984)
• Parties: Marcia WILE, Respondent, v. Jack WILE, Appellant. (Action) Jack WILE, Appellant, v. Marcia WILE, Respondent. (Action)
• Court: New York Supreme Court — Appellate Division

Page 821

474 N.Y.S.2d 821

100 A.D.2d 932

Marcia WILE, Respondent, v. Jack WILE, Appellant. (Action No. 1)

Jack WILE, Appellant, v. Marcia WILE, Respondent. (Action No. 2)

Supreme Court, Appellate Division Second Department.

April 23, 1984.

Ross, Genser & Levine, Garden City (Arthur Levine, Garden City, of counsel), for appellant.

Barbara & Barbara, Carle Place (Joanne Barbara, Carle Place, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, LAZER and MANGANO, JJ.

MEMORANDUM BY THE COURT.

In actions for rescission of a separation agreement (Action No. 1) and for a conversion divorce pursuant to subdivision (6) of section 170 of the Domestic Relations Law (Action No. 2), the husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated April 26, 1983, as (1) denied that branch of his motion which sought to renew a motion for summary judgment dismissing the complaint in Action No. 1, and (2) in effect denied that branch of his motion which sought summary judgment in his favor in Action No. 2.

Order reversed insofar as appealed from, on the law, with costs, the branch of the motion which sought renewal granted, and, upon renewal, the husband's motion for summary judgment in Action No. 1 is granted, and that action is dismissed, and that branch of his motion which sought summary judgment in Action No. 2 for a conversion divorce pursuant to subdivision (6) of section 170 of the Domestic Relations Law granted.

The parties were married in the State of New York on June 1, 1958. There are three children of the marriage, one of whom is a minor. Marital difficulties thereafter arose, and on June 10, 1981, the parties entered into what was purported to be a separation agreement providing, among other things, for certain payments by the husband to the wife for her maintenance and support, and a distribution of the parties' jointly owned property. The separation agreement also contained a clause which provided, in essence, that the parties acknowledge that each has fully disclosed his financial status to the other, that their respective counsel explained to them the legal and practical effect of every aspect of the agreement, and that the circumstances surrounding the preparation and execution of the agreement were fair and not a result of fraud, duress or undue influence. The record shows that the husband is a man of substantial means with a lucrative business in the garment industry.

On or about November 12, 1981, the wife commenced an action for rescission of the separation agreement (Action No. 1). In her complaint, she alleged that the separation agreement had been executed as a result of fraud, duress and overreaching on the part of the husband. As evidence of such charges, she alleged that her husband had begun to exert extreme pressure upon her to reach some sort of financial settlement and sign a separation agreement in accordance therewith. The wife alleged that her husband threatened to reduce or cut off support payments he had been voluntarily making to her, which threat had been carried out for a brief period of time. There were other statements allegedly made by the husband, primarily to the effect that his wife had " 'better not bother with the business' ". She further claimed that her husband withheld certain financial information regarding his business, a related profit-sharing plan and other unspecified assets. As a result of her husband's alleged conduct, the wife felt tense, frightened and upset, which emotional state allegedly caused her to sign against her will a separation agreement very unfavorable to her.

By notice of motion dated December 18, 1981, the husband moved for summary judgment dismissing the wife's complaint. In his affidavit, the husband stated that his wife had received assets valued at approximately $375,000, that she had been represented by competent counsel throughout the nearly seven months spent negotiating a property settlement, that the agreement itself had been revised numerous times, often at the request of the wife, and that he supplied all financial information which his wife's counsel had requested.

By order of the Supreme Court at Special Term (RONCALLO, J.), dated February 23, 1982, the motion for summary judgment was denied.

Thereafter, on or about June 14, 1982, the husband commenced an action for a conversion divorce pursuant to subdivision (6) of section 170 of the Domestic Relations Law (Action No. 2), on the ground that there existed a duly executed separation agreement which had been filed prior to the commencement of said action, that the husband had at all times substantially complied with his obligations under the separation agreement and that the parties had lived separate and apart for more than one year. The wife put in an answer denying the material allegations of the complaint and raised affirmative defenses.

On November 10, 1982, the husband conducted an examination before trial of his wife. During the course of questioning, it was revealed that the wife had been aware of her husband's business and profit-sharing plan, and knew generally what the latter consisted of. She also indicated that, with respect to the property settlement, "I knew what I was getting". She stated...