Opinion
June 29, 1992
Appeal from the Supreme Court, Westchester County (Charde, J.H.O.).
Ordered that the judgment is affirmed, with costs.
The plaintiff wife instituted the instant action seeking, inter alia, a conversion divorce based upon a separation agreement dated May 2, 1987. The defendant claimed that the agreement was unfair and the product of the plaintiff's overreaching. Although the plaintiff was herself an attorney, the defendant adamantly refused to retain legal representation during the time the agreement was negotiated and executed.
Following a nonjury trial, the Supreme Court specifically found portions of the defendant's testimony "wholly incredible", and accepted "the plaintiff's version of the facts as being the more credible version". The court concluded that the agreement was fair and that the defendant was fully aware of the facts and legal ramifications of the agreement. Accordingly, it rejected the defendant's claims of overreaching by the plaintiff and awarded the plaintiff, inter alia, a judgment of divorce. We affirm.
It is elementary that the courts must scrutinize separation agreements for evidence of fraud or overreaching (see, Christian v. Christian, 42 N.Y.2d 63, 71-73). Overreaching, however, is not proven simply by showing that the party seeking to invalidate the agreement was not represented by counsel when the agreement was executed (see, Juliani v. Juliani, 143 A.D.2d 72, 74). In this instance, the defendant, a well-educated engineer with a doctorate from Columbia University in operations research, made a conscious decision to forego legal representation in negotiating the agreement. Thus, the defendant's purported ignorance of his legal rights was the result of his own free will. Moreover, the defendant's claim of ignorance is belied by his extensive handwritten revisions on the numerous drafts of the separation agreement. In addition, the defendant has offered nothing other than his own conclusory allegations to indicate that the agreement was unfair (see, Amestoy v. Amestoy, 151 A.D.2d 709, 710). Therefore, we find that the agreement is binding on the parties (see, Christian v. Christian, supra; Melchiorre v Melchiorre, 142 A.D.2d 558).
The defendant's remaining contentions regarding the calculation of child support arrears and counsel fees are either not properly before this court (see, Orellano v. Samples Tire Equip. Supply Corp., 110 A.D.2d 757, 758), or without merit (see, De Cabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881). Thompson, J.P., Miller, Copertino and Pizzuto, JJ., concur.