Rubin v. Rubin

83 A.D.2d 608, 441 N.Y.S.2d 296, 1981 N.Y. App. Div. LEXIS 14896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1981
• Status: Published

Opinion

In a matrimonial action, the defendant wife appeals from a judgment of the Supreme Court, Westchester County (Slifkin, J.), entered February 6, 1980, which, inter alia, granted a divorce on the basis of the parties having lived separate and apart for a period of one or more years pursuant to a written separation agreement and awarded plaintiff judgment against defendant in the sum of $8,592.53, representing “loans and advances.” Judgment modified, on the law, by adding a provision awarding the defendant the sum of $3,200, as an offset to the sum awarded plaintiff. As so modified, judgment affirmed, with costs to appellant. The trial court properly held that the plaintiff, an attorney, was not guilty of overreaching in preparing the separation agreement. The wife was represented by an attorney, consulted a certified public accountant on the tax and financial implications of the agreement, and the agreement was signed after a year of negotiations (see Christian v Christian, 42 NY2d 63). Moreover, the record supports the trial court’s finding that the husband fully performed his obligations under the agreement. However, we agree with the wife that the husband improperly kept the entire sum of $8,000 which was taken from the proceeds of the sale of the marital home purportedly to pay a debt to the husband’s mother. The husband conceded that the debt had been forgiven. Pursuant to the separation agreement, the wife is entitled to 40% of the proceeds from the sale of the house. Accordingly, she is entitled to the sum of $3,200. We have considered the other points raised by the wife and have found them to be without merit. Mollen, P. J., Damiani, Gulotta and Cohalan, JJ., concur.