BRENNAN DUFFY v. DUFFY (2005)

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Blydenburgh, J.), entered July 2, 2004, which denied his motion, in effect, to vacate a stipulation of settlement dated April 26, 2002.

ORDERED that the order is affirmed, with costs.

 “A separation agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability” (Linder v. Linder, 297 A.D.2d 710, 711, 747 N.Y.S.2d 396;  see Cohn v. Cohn, 15 A.D.3d 332, 788 N.Y.S.2d 865;  O'Beirne v. O'Beirne, 5 A.D.3d 572, 773 N.Y.S.2d 448).  “Judicial review of separation agreements is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own” (Strangolagalli v. Strangolagalli, 295 A.D.2d 338, 742 N.Y.S.2d 914;  see Christian v. Christian, 42 N.Y.2d 63, 71, 396 N.Y.S.2d 817, 365 N.E.2d 849).

The agreement was reached fairly and equitably, and in a manner that was free from the taint of fraud and duress.   Contrary to the defendant's contention, the plaintiff's attorney did not ostensibly represent both parties, and therefore, there was no inference of overreaching (cf. Tuccillo v. Tuccillo, 8 A.D.3d 659, 660, 779 N.Y.S.2d 234).   Moreover, “it was not [the plaintiff's] burden to prove that the agreement was fair and reasonable, but rather, it was [the defendant's] burden to show that the agreement was the result of fraud or overreaching, or that its terms were unconscionable” (Chambers v. McIntyre, 5 A.D.3d 344, 345, 772 N.Y.S.2d 530).   The defendant failed to demonstrate any ground to set aside the parties' stipulation and failed to carry the burden necessary for a hearing on unconscionability (see Cohn v. Cohn, supra at 332, 788 N.Y.S.2d 865;  Leahy v. Leahy, 9 A.D.3d 351, 352, 778 N.Y.S.2d 915).

 The fact that the defendant was not represented by independent counsel when the stipulation of settlement was executed does not, without more, establish overreaching or require automatic nullification of the agreement (see Brennan v. Brennan, 305 A.D.2d 524, 525, 759 N.Y.S.2d 744;  Warren v. Rabinowitz, 228 A.D.2d 492, 644 N.Y.S.2d 315).   This is especially true where, as here, the defendant explicitly acknowledged that he was encouraged to retain his own counsel (see Brennan v. Brennan, supra at 525, 759 N.Y.S.2d 744;  Wilson v. Neppell, 253 A.D.2d 493, 494, 677 N.Y.S.2d 144;  Nasifoglu v. Nasifoglu, 224 A.D.2d 504, 637 N.Y.S.2d 792).  “An agreement will not be overturned merely because, in retrospect, some of its provisions were improvident or one-sided” (O'Lear v. O'Lear, 235 A.D.2d 466, 652 N.Y.S.2d 1008), or because “a party had a change of heart” (Warren v. Rabinowitz, supra at 493, 644 N.Y.S.2d 315).