Opinion
201857/2012
06-25-2015
Marzena Jon, Plaintiff, v. Grzegorz Jon, Defendant.
Plaintiff's Attorney: Jody Pugach, Esq. Defendant's Attorney Jennifer L. Drossman, Esq. Attorney for the Children Kellie M. Stabile, Esq.
Plaintiff's Attorney:
Jody Pugach, Esq.
Defendant's Attorney
Jennifer L. Drossman, Esq.
Attorney for the Children
Kellie M. Stabile, Esq.
Leonard D. Steinman, J.
On the morning of March 3, 2014, the parties resolved this divorce action by negotiating and executing a written Stipulation of Settlement (the Stipulation) in the courthouse. The parties had been fighting over custody of their three children. On that day, plaintiff agreed that defendant would have legal and residential custody of the children and a visitation schedule was established. Almost immediately thereafter, plaintiff regretted her decision and changed her mind. Within three days, she brought an application seeking to rescind the Stipulation. Because the evidence presented at the hearing on plaintiff's application established that her agreement to the terms of the Stipulation was knowing and voluntary, with no overreaching by defendant or undue pressure placed on plaintiff, her application is denied. Unless and until the legislature establishes that an unrepresented parent has an absolute right to elect to rescind a custody agreement within a certain time period, plaintiff is bound by her written agreement fairly made and executed.
On May 15 and 18, 2015, the court held a hearing to determine the sole issue of the validity of the Stipulation. The court has reviewed, considered and evaluated the parties' testimony, arguments and the documentary evidence in rendering this decision. The court has relied upon its personal observation of each witness in determining credibility. In reaching its conclusions, the court has carefully observed and listened to the witnesses during their testimony and has evaluated all evidence in light of its relevance, materiality, credibility, importance and weight.
The court finds that the plaintiff was not a credible witness. Plaintiff at times was evasive; at other times, contradictory. Her answers sometimes were rote. The story that she told—which changed from her initial story seeking to undo the Stipulation—was not believable. Plaintiff asserts that on the day the Stipulation was signed she (1) was pressured into signing it; (2) was affected by medication she took for a migraine headache, (3) thought the agreement was temporary (4) was in a nervous state, and (5) did not understand what she was signing. Her assertions are contradicted by the surrounding circumstances, the language of the Stipulation itself and the testimony of the Attorney for the Children (AFC), who this court finds to be a believable and trustworthy witness.
FACT DETERMINATIONS
Plaintiff and defendant were married in May 2002. Both are of Polish background and plaintiff, who is 42 years old, emigrated from Poland to the United States in 2000. The parties have three children: Julia, 13 years old; Gabriella, 12; and Bartoz, 10. The marital residence is located in Glen Cove, New York. This action was commenced by plaintiff in July 2012 and defendant moved out of the marital residence in October 2012. Pursuant to a court-ordered stipulation, the parties had equal parenting time with the children pending the outcome of the divorce action.
Plaintiff is a hairdresser who owns two beauty salons, one in Glen Cove and one in Greenpoint. She has a partner in the Greenpoint location. She has owned her own business since she was 19 years old.
Plaintiff's first language is Polish and her ability to understand English was called into question at the hearing. She testified that she speaks and reads English to a diminished degree. Six years ago, prior to becoming a United States citizen, plaintiff took an English course for three months, twice a week. The AFC testified that she was able to communicate directly with the plaintiff in English orally and in writing (texts) during this matter, although plaintiff's grammar was poor. At a settlement meeting held at defendant's counsel's office, plaintiff did not bother to bring a translator and her attorney did not speak Polish. Plaintiff has successfully operated her businesses in New York—including entering into leases, vendor contracts, a partnership agreement and conducted advertising and marketing—oftentimes without the help of a Polish-speaking friend or counsel. Plaintiff testified that she also converses with some of her customers in English.
This court observed during the hearing that although plaintiff was provided with a Polish interpreter she often began answering questions before receiving a Polish translation. From time to time she answered questions in English, and sometimes spoke to the interpreter in English: for example, when asking him to repeat a question. Based upon the testimony provided and this court's observation of the plaintiff on the witness stand, the court concludes that plaintiff has a good but not perfect command of the English language.
Plaintiff appeared by counsel when she commenced this action on July 3, 2012. On January 23, 2013, the parties agreed by stipulation to the appointment of Kellie Stabile, Esq., to act as AFC. On that date, the court issued an order appointing Cara Klein, Ph.D., to conduct a forensic evaluation of the parties and their children to aid the court in its custody determination. The parties—who as independent business owners each reported on their Preliminary Conference Stipulation and Order to have $27,000 of income—were ordered to share equally in the cost of the forensic, including an initial retainer in the total sum of $5,000.
Notwithstanding that plaintiff reported $27,000 of income on the Preliminary Conference Stipulation and Order she stated on her Net Worth Statement that following her separation from defendant she had approximately $69,000 of annual expenses and $3,050 in assets.
On January 28, 2013, the parties entered into a detailed stipulation setting forth a parenting schedule during the pendency of this action. The schedule provided that the parties would have equivalent parenting time. The stipulation reflected that it was a "Temporary Stipulation Without Prejudice."
In October 2013, plaintiff discharged her lawyer and did not replace him. The next court appearance was in January 2014. At that time, this court scheduled the trial of this matter for March 3, 2014 and informed plaintiff that she would have to proceed to trial whether or not she had retained counsel by that time. The court also informed the parties that if the matter was not resolved before the trial that the court would have no alternative but to meet with the parties' children.
A Note of Issue and a Statement of Proposed Disposition was filed by the plaintiff on February 18, 2014, of which the court takes judicial notice. Plaintiff represented that the case was ready for trial, requested no maintenance from defendant and requested sole custody of the parties' children.
Indeed, plaintiff's demand for sole custody was the impediment to a settlement before the scheduled trial date. Although defendant offered to permanently share custody evenly with plaintiff, she rejected his proposal.
In her direct testimony at the hearing plaintiff testified that she came to court on March 3, 2015 thinking the court would decide the case. She also testified that she thought the court would interview the children that morning (although they were not brought to court). On cross-examination, however, plaintiff asserted that notwithstanding the court's clear directions at the January court conference—and despite her filing of the Note of Issue—she did not understand that all issues regarding custody would be resolved on the March 3 court date. She claimed that while she knew custody would be discussed, she didn't know what would happen.
On the morning of March 3, both parties appeared in court for the scheduled trial, as did defendant's counsel, the AFC and a Polish interpreter supplied by the court. It came to the court's attention that the forensic examination never took place as ordered by the court because neither party paid the court-ordered retainer. As a result, the court adjourned the trial and issued an Amended Order Appointing Forensic requiring each party to pay 50% of the required retainer the next day (over seven months after it was initially due) and 50% by March 31. The court also directed the parties on consent to meet that afternoon at 2:00 in the courthouse with a court-employed mediator.
Upon leaving the courtroom the plaintiff, the AFC and defendant's counsel began discussing the matter outside of the presence of the interpreter in the hallway. Plaintiff claims the attorneys waived some print-outs of text messages between herself and her daughter Julia that she did not have time to review and that defendant's counsel said she was not a good mother. This court believes that the attorneys told plaintiff that she could lose the custody trial if she did not settle. In an effort to convince her of this they referred her to some supposedly damaging text messages.
In any event, the AFC again asked plaintiff why she would not agree to split custody. Plaintiff responded that she did not want the children to bounce back and forth between the parties' homes. The AFC then inquired: "But how would you feel if the judge ordered the kids to be with your husband?" Plaintiff stated that such a result would be "fine." "If that is the case," said the AFC, "then why are we going to trial? Why don't you just let the kids live with your husband?" To the AFC's surprise, plaintiff said "Okay." The AFC and plaintiff talked for a while longer in the hallway. Plaintiff was calm and not upset. The AFC wanted to confirm that plaintiff would indeed allow defendant to have custody of the children and was trying to understand the reason. The AFC again advocated for equal split custody. Plaintiff responded that it wouldn't work. The AFC then became convinced that there was an agreement: defendant would have custody of the children subject to visitation by the plaintiff.
The plaintiff, defendant's counsel, the AFC and the interpreter all went into a vacant conference room in the courthouse to memorialize the agreement. They stayed there for a couple of hours. Defendant remained outside of the conference room at all times and occasionally his counsel left to speak with him about the Stipulation's terms. Defendant agreed to all of the parenting time requested by plaintiff, and plaintiff was encouraged by the AFC to take more parenting time (which she declined). The interpreter translated each of the Stipulation's sections to plaintiff as the Stipulation was being drafted and translated the entire Stipulation again to her when it was complete. He also translated for plaintiff during the discussions leading to the various terms reflected in the Stipulation. There was never any disagreement as to the Stipulation's terms.
No voices were raised during the drafting session in the conference room. Plaintiff never left or attempted to leave the room until she executed the Stipulation when it was completed. At no time did she state or indicate that she wasn't feeling well. She never asked for a break. She never stated that she felt pressured. She never asked for more time to think. She did not phone anyone and never said she wanted to consult with a lawyer.
At one point, when only the AFC and plaintiff were in the conference room, plaintiff stated that she was going to invest time into her work and find a new family, but that she would be lonely until then. At this point she started to cry. Given the circumstances—plaintiff was giving custody to her husband—the AFC thought plaintiff's tears were normal and understandable. Both parties, still separated, executed the Stipulation. Given that the parties had run into the lunch hour it was determined by them to forego allocuting on the record, notwithstanding the court's invitation for them to do so when court resumed. Having settled the case, the parties never went to see the court mediator that afternoon.
Very quickly, plaintiff regretted her decision. She testified that she went to her car and called a friend of hers who said "why did you do this?" She further testified that she then called the forensics office to try to speak to her to see what could be done. Plaintiff claims that she also called the bar association to ask "how I should proceed with the next step ."
Within three days, on March 6, 2014, plaintiff filed an Order to Show Cause requesting that the court "review the settlement terms and modify it as to give me custody of my daughter Julia." On March 7, 2014, plaintiff also sent a letter to the court explaining her decision to file her Order to Show Cause. The thrust of both the motion and the letter were that plaintiff's children were very upset when they learned that defendant would have custody of them, particularly Julia.
This court denied plaintiff's motion after listening to argument but without a hearing. That decision was reversed by the Appellate Division, which ordered that a hearing be held to test the validity of the Stipulation.
Analysis
New York law protects the rights of parties to enter into agreements relating to their marital relations. See Domestic Relations Law § 236(B)(3) ("An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action..."). Duly executed separation agreements are generally valid and enforceable. Van Kipnis v. Van Kipnis, 11 NY3d 573 (2008). When presented with legal challenges to marital agreements, our courts have recognized that there is a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements." Bloomfield v. Bloomfield, 97 NY2d 188, 193 (2001), quoting Matter of Greiff, 92 NY2d 341, 344 (1998). "Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences...." Christian v. Christian, 42 NY2d 63, 71 (1977).
While the law has long favored marital agreements and seeks to uphold them (see De Cicco v. Schweizer, 221 NY 431, 439 (1917)), marital agreements are not immune from the public policy considerations that engage the attention and oversight of the courts. See Matter of Greiff, 92 NY2d at 345 (marital agreements are not insulated from "typical contract avoidances"). Courts have "thrown their cloak of protection" over marital agreements "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." Petracca v. Petracca, 101 AD3d 695, 699 (2d Dept. 2012) quoting Christian v. Christian, 42 NY2d at 72.
If an agreement is manifestly unfair as a result of one party's overreaching relief shall be granted. Christian v. Christian, 42 NY2d at 72. As stated by the Appellate Division in this case, "[c]ourts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching." Jon v. Jon, 123 AD3d 979, 980 (2d Dept. 2014)(emphasis in original) quoting Kerr v. Kerr, 8 AD3d 626, 627 (2d Dept. 2004). The court is to make a decision based on the totality of the circumstances. Id.
There is nothing manifestly unfair on the face of the parties' Stipulation. It provides that defendant is to have custody of the children. Given the animosity between the parties—leading to the agreement that pick-up and drop-off of the children is to occur at a police station—and their lack of communication (plaintiff testified she hadn't spoken to her husband in two years) one party or the other was certain to be awarded sole custody by the court. See Florio v. Niven, 123 AD3d 708 (2d Dept. 2014).
Nor is plaintiff's parenting time as agreed to by the parties unfair on its face. Plaintiff is to have mid-week visitation with the children every Tuesday after school until 8:15 p.m. and parenting time every other weekend from 5:00 p.m. Saturday (when plaintiff concludes work) until Monday morning. Any experienced matrimonial practitioner is familiar with this commonly agreed-upon schedule. Holidays and school breaks are evenly divided. And the AFC's testimony—which this court credits—established that plaintiff was encouraged to agree to more parenting time, which she declined to do. All of the parenting time plaintiff requested was provided to her.
That plaintiff enjoyed equal parenting time with the children prior to the Stipulation does not make the Stipulation any less fair given that plaintiff would not agree to a continuation of the split-time arrangement that was then in place. The defendant previously requested that plaintiff agree to a 50-50 split parenting schedule and plaintiff refused. The AFC, even up until the execution of the Stipulation, urged plaintiff to agree to a 50-50 split schedule. This is not a situation where plaintiff's will was overcome and she finally acceded to defendant's demands to unequal parenting time—no such demands by defendant were ever made.
At trial, plaintiff revealed that her past motivation to reject a 50-50 split time arrangement was financial.
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Nonetheless, the fact that plaintiff agreed to a reduction of her parenting time with her children does compel a review of the circumstances surrounding the execution of the Stipulation. And nothing in that review evidences overreaching by defendant.
Certainly, the setting of the negotiation and execution of the Stipulation does not point to overreaching. No location could be more neutral—a courthouse conference room steps away from the judge's courtroom and chambers. Nor was plaintiff coerced into going in to the conference room and negotiating the agreement; she had rejected settlement proposals in the past and she knew that she was going to see a court mediator in just a few hours. And she was never alone with defendant's counsel: both the AFC and the court interpreter were there at all times during the negotiations.
Although plaintiff asserts she felt pressured, there was no objective evidence of any pressure being asserted. Plaintiff was free to leave the conference room and go to her car at any time, or call or text someone, or simply ask for more time to think. She did none of those things. And everything she asked for in the conference room in settlement was provided in the Stipulation.
Plaintiff asserts that she believed the Stipulation was temporary until a forensic examination was conducted and completed, the court met with the children and the parties met with the court mediator. Plaintiff's assertion is not credible for a multitude of reasons. In no particular order, these include: the language of the agreement itself states—and the last words interpreted for the plaintiff were—"This will constitute a full & final settlement of the parties." And what would be the purpose of replacing the existing temporary stipulation with another and changing the status quo so as to give defendant custody until those events took place?
Furthermore, the Stipulation not only resolved custody but set forth the agreed-upon grounds for the divorce, resolved issues concerning equitable distribution and provided for the parties' mutual waiver of maintenance. Plaintiff made no mention of her belief that she thought the Stipulation was "temporary" in her Order to Show Cause or her letter to the court seeking a modification of the Stipulation. And, finally, the parties did not go see the court mediator that afternoon because there was no reason to—the matter had been finally settled.
To the extent plaintiff felt unwell that day, she testified that she did not feel well whenever she had to come to court. Plaintiff did not tell anyone she wasn't feeling well, and there was no testimony that she appeared under the weather.
Finally, plaintiff read the Stipulation and also had it translated for her by a court interpreter while it was being drafted and again after the conclusion of the drafting but before it was executed. Plaintiff's assertion that she did not understand the meaning of "sole custody" at the time she signed the Stipulation flies in the face of plaintiff's own request for sole custody in this action and her inability to explain what she thought the term "sole custody" meant at the time she signed the Stipulation.
Although Wife was not represented by counsel—because she had previously discharged him and elected to represent herself—the absence of independent legal representation, without more, does not establish overreaching or require nullification of an agreement. Levine v. Levine, 56 NY2d 42 (1982); Forsberg v. Forsberg, 219 AD2d 615 (2d Dept. 1995). The absence of counsel, however, is a significant consideration in determining whether the stipulation was entered into freely and fairly. Jaus v. Jaus, 168 AD2d 487, 490 (2d Dept. 1990). But here, plaintiff had the opportunity in just a few hours to negotiate with defendant's counsel in the presence and with the assistance of a court mediator. She decided to pass on that opportunity.
Furthermore, plaintiff was not significantly disadvantaged by the lack of counsel because she could have obtained equal parenting time with her children if she had only agreed to it. She declined because she did not want the children shuttling between their parents. If defendant was not going to agree to let plaintiff have custody of the children—and he wasn't—she decided to do what in her opinion was the next best thing: let the children stay with defendant. And she did not identify a single thing she wanted in the Stipulation that was not included. Given that the Stipulation was drafted and signed in "neutral territory"—the courthouse within earshot of the judge—and since the AFC was present throughout, the absence of an attorney did not render the Stipulation unfairly made.
In sum, neither the terms of the Stipulation nor the circumstances surrounding its execution evidence overreaching on the part of defendant. As a result, this court may "not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident" or imprudent. Christian v. Christian, 42 NY2d at 72. And that includes agreements reflecting such personal decisions as parenting time and custody.
This court does believe plaintiff in one important respect: she freely and fairly made a decision and executed an agreement that she very quickly regretted and desired to change. But there is no statute or case that affords a contracting party the opportunity to change their mind, regardless of how quickly they desire to do so, in the circumstances presented here. This court sees the wisdom in affording to an unrepresented party the opportunity within a short window the absolute right to rescind a custody agreement. That would be plaintiff's only salvation when faithfully applying the current statutory and common law to the facts in this matter. Since the court is bound to apply the law as it exists, plaintiff's application is denied in all respects.
Any relief not specifically addressed herein is denied.
This constitutes the Decision and Order of this court.
Dated: June 25, 2015ENTER:
Mineola, New York
_____________________________
LEONARD D. STEINMAN, J.S.C.