NY CHILD CUSTODY - JOINT LEGAL CUSTODY ISSUES

SCOLAVINO v. SCOLAVINO, 247 AD 3d 1078 - NY: Appellate Div., 2nd Dept. 2026:

"In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated October 15, 2024. The order, insofar as appealed from, granted those branches of the defendant's motion which were for declarations that a so-ordered stipulation of settlement dated July 8, 2024, required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning their children and that such major decisions included matters beyond the children's health, education, and religion.

Ordered that the order is affirmed insofar as appealed from, with costs.

In June 2023, the plaintiff commenced this action for a divorce and ancillary relief. The parties entered into a so-ordered stipulation of settlement dated July 8, 2024, which included, inter alia, terms relating to custody and parental access of the parties' two children. The stipulation provided, among other things, that "[t]he parties in this matter will have joint legal custody of the two minor children," that "[t]he parties are going to utilize ... a parent coordinator solely for major decisions of health, education and religion," and that the parties would "be guided by the recommendation of the [parent coordinator] in making major decisions," with the party whose position the parent coordinator supported being permitted to implement that decision, subject to the other party's right to seek a stay from a court of competent jurisdiction. The stipulation further provided that the plaintiff would have primary residential custody of the children, subject to the defendant's parental access schedule, and that each party would be entitled to make the day-to-day decisions for the children while they were in his or her care.

In September 2024, the defendant moved for declarations, among other things, that the stipulation (1) required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning the children, and (2) defined major decisions to include not only matters of the children's health, education, and religion, but also decisions relating to dental, therapeutic, and psychiatric treatment, extracurricular activities, summer camp and summer programs, day care and day care facilities, and tutoring. The plaintiff opposed the motion. In an order dated October 15, 2024, the Supreme Court, 1079*1079 inter alia, granted those branches of the defendant's motion which were for declarations that the stipulation required the parties to consult in good faith and reach joint decisions regarding all major decisions concerning the children and that such major decisions included matters beyond the children's health, education, and religion. The plaintiff appeals.

"A stipulation of settlement is a contract subject to the principles of contract construction and interpretation" (Sabau v Sabau, 222 AD3d 1017, 1019 [2023]). "A court should interpret the stipulation in accordance with its plain and ordinary meaning, and `arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized'" (id., quoting Matter of Schiano v Hirsch, 22 AD3d 502, 502 [2005]). "`Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence'" (Herman v Herman, 220 AD3d 849, 850 [2023], quoting Oakes v Oakes, 38 AD3d 865, 865 [2007]). "Joint custody reposes in both parents a shared responsibility for and control of a child's upbringing" and thus requires "the parties ... to communicate and cooperate on matters concerning the child" (Matter of Lee v Fitts, 147 AD3d 1058, 1059 [2017] [internal quotation marks omitted]).

Here, the stipulation, as placed on the record in open court, is clear and unambiguous (see Herman v Herman, 220 AD3d at 850). Read as a whole, the stipulation reflects the parties' agreement to share joint legal custody of the children and, consistent with the ordinary meaning of that term, to consult in good faith and attempt to jointly resolve all major decisions concerning the children, while specifically carving out a subset of such decisions—those relating to health, education, and religion— for nonjudicial dispute resolution through the parent coordinator (see Matter of Lee v Fitts, 147 AD3d at 1059). Issues such as dental care, summer camp, summer programs, day care, therapy, psychiatric care, and extracurricular activities fall within the umbrella of the categories in the stipulation for which nonjudicial dispute resolution applies.

Accordingly, the Supreme Court properly granted those branches of the defendant's motion which were for declarations that the stipulation required the parties to consult in good faith and jointly resolve all major decisions concerning the children and that such major decisions included matters beyond the children's health, education, and religion."

JOINT LEGAL CUSTODY AND FINAL DECISION MAKING

A cautionary warning when drafting these clauses in a divorce/separation agreement.

KS v. JS, 2024 NY Slip Op 51418 - NY: Supreme Court, Putnam 2024:

"VICTOR G. GROSSMAN, J.

It is ORDERED that the application is disposed of as follows:

THE STIPULATION

This is a contested matrimonial action. On June 25, 2024, the parties placed an oral stipulation (the "Stipulation") relative to the custody of their two young children on the record in open court. The transcript of the proceeding was "so ordered" by the Court. So far as pertains to the dispute presently before the Court, the transcript states as follows:

Ms. Gallo: Your Honor, I believe that we reached a settlement based on what the AFC has told us. . . . I do believe that we can probably put the bullet points of the settlement on the record, but it will be subject to a complete custody and access stipulation that we would then ask the Court to so order

. . . . .

The Court: Is it the parties' intention that the bullet points will be controlling unless or until a formal document is executed?

Ms. Gallo: Yes, Your Honor.

The Court: Okay. Is that your understanding as well?

Ms. Dewbury: Yes, Your Honor.

The Court: All right. And, Mr. Deurso, is that your understanding as well?

Mr. Deurso: Yes, Judge, that's my understanding.

Ms. Gallo: The parties in this matter will have joint legal custody of the two minor children, L.S. and Lu. S. The parties are going to utilize John Pappalardo as a parent coordinator solely for major decisions of health, education and religion. . . . There will also be — the parties will be guided by the recommendation of the PC in making major decisions. And the party who the PC is in agreement with will be able to implement their decision subject to the other party's right to seek a stay from a court of competent jurisdiction. . . . With respect to the residential custody of the children, the Plaintiff will have primary residential custody of the children subject to the Defendant's access schedule with the children which will be as follows:. . . .

(Transcript, June 25, 2024, pp. 4-6)

DEFENDANT'S APPLICATION

Plaintiff thereafter took unilateral action with respect to the children which Defendant claims violated his rights under the Stipulation as a parent enjoying joint legal custody of the children. Defendant in consequence filed the present application for an order as follows:

1. Declaring and/or directing that the parties' June 25, 2024 joint custody agreement, which was "So Ordered" by this Court:

(a) requires the parties to engage in good faith consultation (email exchanges to suffice) regarding all important or major decisions (hereinafter "Major Decisions") concerning the parties' two minor children . . . prior to the [i] submission of unresolved Major Decisions related to the health, education and religion of/for the Children to the parties' agreed on parent coordinator; and [ii] implementation of any other Major Decisions concerning the Children;

(b) precludes either party from unilaterally implementing any Major Decisions absent the issuance of a recommendation by the parties' agreed on parent coordinator (related to the health, education and religion of/for the Children) or without the express written consent or agreement of the other party regarding any other Major Decisions concerning the Children;

2. Declaring that Major Decisions concerning the Children include health, education and religious decisions of the Children, as well as decisions or issues relating to dental, therapeutic, psychiatric, extracurricular activities (both school related and activities unrelated to school), summer camp, summer programs, day care, day care facilities, and tutoring of/for the Children;

3. Declaring that if either party unilaterally implements any Major Decisions concerning the Children without the express written consent of the other party or the issuance of a recommendation by the parties' agreed on parent coordinator with regard to health, education and religious decisions concerning the Children, the other party shall not be required to contribute to the cost of any unilaterally implemented Major Decisions . . .

Plaintiff in opposition asserts that the Stipulation unambiguously restricts "Major Decisions" to those concerning "health, education and religion."

LEGAL ANALYSIS

A. The Construction of Matrimonial Settlement Agreements

A matrimonial settlement agreement is a contract subject to principles of contract interpretation. See, Rainbow v. Swisher, 72 NY2d 106, 109 (1988). The rule applies to oral stipulations placed on the record in open court: "[a]n oral stipulation of settlement that is made in open court . . . is enforceable as a contract and is governed by general contract principles for its interpretation and effect; [t]he role of the court is to determine the intent and purpose of the stipulation based on an examination of the record as a whole." Scherer v. North Shore Car Wash Corp., 72 AD3d 927, 929 (2d Dept. 2010); Koppie v. Koppie, 62 AD3d 666, 667 (2d Dept. 2009); Flannery v. Flannery, 54 AD3d 804 (2d Dept. 2008).

The plain text of the agreement is the best source of the parties' intent. See, Goldman v. White Plains Center for Nursing Care, 11 NY3d 173, 176 (2008); Burns v. Burns, 163 AD3d 210, 213 (4th Dept. 2018). "Where . . . the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence (Nichols v. Nichols, 306 NY 490, 496 . . .)." Rainbow v. Swisher, supra, 72 NY2d at 109.

B. The Parties' Positions

Here, however, the parties offer conflicting interpretations of the Stipulation.

According to Defendant:

The parties in this matter agreed to share joint legal custody of the Children. Neither has final decision-making authority and neither has the unilateral right to implement any important or major decisions regarding the children . . . [J]oint legal custody encompasses more than only the health, education and religious decisions that the parties agreed to submit to a parenting coordinator in the absence of an agreement between themselves.

(Kesten Aff. ¶¶ 2, 3)

Plaintiff is wrong in even suggesting that the parties' agreed that "health, education and religion" are the only "major decisions" that exist or require joint decisions. They are simply the only categories of major issues for which the parties made alternate or tie breaking resolution arrangements if they were unable to mutually agree on a decision relating to those three categories on their own.

(Kesten Reply Aff. ¶4)

According to Plaintiff:

Defendant's contention that the Stipulation only prescribes which Major Decisions will be submitted to the Parent Coordinator and does not actually define the ambit of Major Decisions in general is not accurate. The Parties agreed that the Parent Coordinator would be used to resolve Major Decisions regarding health, education and religion on which the Parties could not agree and intentionally limited the scope of those decisions to those three (3) specific categories. Defendant's argument that entire unidentified swathes of Major Decisions could exist (and that they are without any mechanism for resolution) defies logic.

(Gallo Aff. ¶9)

The very nature of family matters is highly discretionary, individualized, and flexible and there is no statutory definition of what constitutes a Major Decision or, for that matter, even joint legal custody . . . The purpose of designating Major Decisions (and attendant dispute resolution mechanisms) is to distinguish a subset of particularly consequential decisions that require a greater degree of coordination and input between divorced parents. Doing so accomplishes the dual purpose of ensuring that both parents are involved in making the most significant types of decisions while also exempting the dozens of less significant decisions from time consuming and conflict-inducing back and forth.

(Gallo Aff. ¶¶ 15, 16)

C. A Literal Reading of the Stipulation

On a purely literal reading of the language of the Stipulation, it would appear that Defendant has the better of the textual argument. The critical language, once again, is:

The parties in this matter will have joint legal custody of the two minor children, L.S. and Lu.S. The parties are going to utilize John Pappalardo as a parent coordinator solely for major decisions of health, education and religion. . . .

The parties by this language agreed to "joint legal custody" without qualification, i.e., without delimitation of the areas of the children's life to which it applies. That they agreed to use a PC "solely for major decisions of health, education and religion" is naturally read, as Defendant suggests, as carving out a subset of issues for reference to the PC when the parents reach an impasse.

D. Construction in the Event of Ambiguity

Plaintiff's view — that providing a mechanism of resolution "solely for major decisions of health, education and religion" effectively limited the scope of "joint legal custody" — goes beyond the literal language of the Stipulation and rests on an argument that given the fluid and ill-defined nature of such things as "family matters", "joint legal custody", and "major decisions", it "defies logic" to suggest that the parties would go to the trouble of specifying a mechanism of resolution for only a subset of the major decisions on which the parents could disagree under a regime of joint legal custody. If and to the extent that Plaintiff's interpretation gives rise to an ambiguity requiring resort to extrinsic aids to reach a proper construction of the Stipulation, it invites consideration of the law of "joint legal custody", which was certainly present to the minds of practitioners as learned and astute as those representing the parties herein.

In Dolman v. United States Trust Co. of NY, 2 NY2d 110 (1956), the Court of Appeals wrote:

[I]t is basic that, unless a contract provides otherwise, the law in force at the time the agreement is entered into becomes as much a part of the agreement as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made and the contract will be construed in the light of such law.

Id., 2 NY2d at 116. Elaborating on Dolman, the Fourth Department has written:

The Dolman rule is of longstanding vintage, and the "principle embraces alike those [laws in force at the time of a contract's execution] which affect its validity, construction, discharge, and enforcement" (Von Hoffman v. City of Quincy, 71 U.S. (4 Wall.) 535, 550 . . . [1866] [italics added in Burns]. By virtue of the Dolman rule, when parties enter into an agreement authorized by or related to a particular statutory scheme, the courts will presume — absent something to the contrary — that the terms of the agreement are to be interpreted consistently with the corresponding statutory scheme [cit.om.].

Burns v. Burns, supra, 163 AD3d at 214. Broaching the issue from the perspective of the parties' reasonable expectations, the First Department has observed:

Besides the common meaning of the language employed, the expectations and purposes of the parties in view of the factual context in which the agreement was made must be considered in interpreting a contract term, with due regard to the parties' sophistication [cit.om.]. With respect to reasonable expectations, it is axiomatic that the parties to an agreement will interpret the instrument governing their relationship in accordance with existing law [cit.om.].

Madison Avenue Leasehold, LLC v. Madison Bentley Associates LLC, 30 AD3d 1, 8 (1st Dept. 2006).

E. Construction of the Stipulation in Light of the Law of Joint Legal Custody

There are two salient points to be made concerning "joint legal custody", the first having to do with its meaning and scope, the second having to do with the circumstances wherein it may appropriately be implemented.

"Joint custody . . . reposes in both parents a shared responsibility for and control of a child's upbringing." Braiman v. Braiman, 44 NY2d 584, 589 (1978); Matter of Argila v. Edelman, 174 AD3d 521, 523 (2d Dept. 2019). In Trapp v. Trapp, 136 AD2d 178 (1st Dept. 1988), the First Department elaborated on the concept:

In joint legal custody . . . although the children actually live with only one parent, both parents continue to share the same rights and responsibilities as they did during the marriage to participate in the decisions affecting their children. In this situation, the day-to-day child rearing decisions are made by the parent with whom the children are living, while decisions with respect to the important issues, such as religious training, education and medical care, and sometimes even less significant matters, such as discipline, diet and the choice of a summer camp, are jointly made. [cit.om.].

Trapp, supra, 136 AD2d at 180-181. See, Tippins, New York Matrimonial Law and Practice, Vol. 3, §21.2, p. 205 (2021) ("Joint custody, to work effectively, requires that the parents be able to consult and agree upon decisions of major import to the lives of their children. At a minimum, such decisions typically encompass medical, religious, and educational issues." [emphasis added]). As the Trapp Court pointedly observed, "there has been no uniform application of the term `joint custody' and no single arrangement which results when a joint award is made." Id., at 181 (quoting Dodd v. Dodd, 93 Misc 2d 641, 644-645 [Sup. Ct. NY Co. 1978]). See also, Taylor v. Taylor, 306 Md. 290, 296, 508 A.2d 964, 967 (Md. 1986) ("Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare" [emphasis added]).

A number of states have enacted statutes defining joint legal custody. Thus:

• Cal.Fam.Code §3003: "`oint legal custody' means both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."

• Ga.Code Ann. §19-9-6(5): "`Joint legal custody' means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions."

• Idaho Code §32-717B(3): "`Joint legal custody' means a judicial determination that the parents or parties are required to share the decision-making rights, responsibilities and authority relating to the health, education and general welfare of a child or children."

• Mass.Gen.Laws.Ann. 208 §31: "`Shared legal custody', continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development."

• Mich.Comp.Laws.Ann. §722.26a(7): "As used in this section, `joint custody' means an order of the court in which one or both of the following is specified: (a) That the child shall reside alternately for specific periods with each of the parents. (b) That the parents shall share decision-making authority as to important decisions affecting the welfare of the child.

• Minn.Stat.Ann. §518.003(3)(b): "`Joint legal custody' means that both parents have equal rights and responsibilities, including the right to participate in major decisions concerning the child's upbringing, including education, health care, and religious training."

• Miss.Code.Ann. §93-5-24(5)(e): "For the purposes of this section, `joint legal custody' means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.

• Vernon's.Ann.Missouri Stat. §452.375(1)(2): "`Joint legal custody' means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority."

• N.J.S.A. §9:2-4(a): "In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include (a) Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include . . . (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare."

• New.Mex.Stat.Ann. §40-4-9.1(J)(3, 4): "An award of joint custody means that . . . (3) the parents shall consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent shall make a decision or take action which results in a major change in the child's life until the matter has been discussed with the other parent and the parents agree." The "major changes" referenced in subdivision "4" are: changes in home city or state of residence; changes in religious denomination and religious activities; type of education, public or private; major elective medical or dental treatment; and changes in recreational activities.

• Oregon.Rev.Stat. §107.169(1): "As used in this chapter, `joint custody' means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child's residence, education, health care and religious training."

• S.Dak.Cod.Laws §25-5-7.1: "In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on, and participate in, major decisions affecting the welfare of the child. . . . If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include the child's primary physical residence, child care, education, extracurricular activities, medical and dental care, religious instruction, the child's use of motor vehicles, and any other responsibilities which the court finds unique to a particular family or in the best interest of the child. . . ."

• Vermont.Stat.Ann. §664(1)(A): "`Legal responsibility' means the rights and responsi-bilites to determine and control various matters affecting a child's welfare and upbringing other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements. Legal responsibility may be held solely or may be divided or shared."

• Wisc.Stat. §767.001(2): "`Legal custody' means . . . the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order . . . `Major decisions' includes, but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care and choice of school and religion."

The foregoing caselaw and statutory authority teaches that while shared responsibility for major decisions concerning a child's religion, education and health is at the core of joint legal custody, those three categories do not exhaust the areas of a child's life that may be subject to consultation and mutual decision-making by parents under a joint custody arrangement.

In New York, mutual control over issues pertaining to religion/education/health would, as Professor Tippins notes, constitute a minimal version of joint legal custody. See also, Trapp v. Trapp, supra. However, New York courts, as Defendant aptly observes, often interpret joint legal custody more broadly, not only by taking an expansive view of what falls under the rubric of "education" or "health", but also by including, for example, such things as extracurricular activities and summer camp. See, Chamberlain v. Chamberlain, 24 AD3d 589, 593 (2d Dept. 2005); Winslow v. Winslow, 205 AD2d 620 (2d Dept. 1994); Wideman v. Wideman, 38 AD3d 1318 (4th Dept. 2007); A.F. v. T.F., 83 Misc 3d 1228(A) (Sup. Ct. Westchester Co. 2024); D.A. v. C.A., 83 Misc 3d 1214(A) (Sup. Ct. Westchester Co. 2024); N.F. v. O.F., 82 Misc 3d 1240(A) (Sup. Ct. Westchester Co. 2024); M.R. v. A.D., 32 Misc 3d 1512 (Sup. Ct. NY Co. 2011). Other states by statute codify a broad view of joint legal custody by means of the definition of major decisions which require consultation and mutual decision-making: in many cases by incorporating such all-encompassing terms as the child's "welfare" or "general welfare", in others by adding to religion/education/health such other categories as extracurricular activities, change of residence, change of recreational activities, child care, travel arrangements, and/or use of motor vehicles.

Thus, when the parties agreed to joint legal custody of their two minor children without explicit definition or limitation, they may prima facie be deemed to have intended a regime of mutual decision-making on a scale reflected in the law, as summarized above.

However, that does not conclude the analysis. In Matter of Hreat v. Hreat, 189 AD3d 1237 (2d Dept. 2020), the Second Department, quoting Braiman v. Braiman, supra, wrote:

"[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" (Braiman v. Braiman, 44 NY2d 584, 589-590 [1978]). "However, joint custody is inappropriate where the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the child" (Matter of Gorniok v. Zeledon-Mussio, 82 AD3d 767, 768 [2011] . . .).

Hreat, supra, 189 AD3d at 1238. See, Trapp v. Trapp, supra, 136 AD2d at 181 (same). See also, Tippins, New York Matrimonial Law and Practice, Vol. 3, §§ 21.2-21.4, pp. 204-217 (2021). Professor Tippins takes a markedly cynical view of the prospects of joint legal custody for success. He observes inter alia:

• "[Joint legal custody] was a nice `touchy-feely' ring to it and is often touted as a potential panacea to the deadly disorders which commonly emerge from a custody contest. Unfortunately, like so many altruistic alternatives postulated in the realm of domestic relations, joint custody is often more appealing on paper than it is workable in the heat of a family fray." Id., at 204.

• "Joint custody, to work effectively, requires that the parents be able to consult and agree upon decisions of major import to the lives of their children . . . This sharing of the decision-making process is at once the hallmark and the downfall of joint custody as a practical solution to many custody disputes. It is often quipped within the matrimonial bar that if the parties could get along well enough to navigate such choppy custodial waters, they would not have needed to divorce in the first place. While this aphorism may be overstated, practice experience indicates that it is a rare couple who can transcend the incidents of their own estrangement and effectuate postdivorce coparenting in a meaningful and amicable way. Id., at 205.

• Professor Tippins goes on to reference "[t]he almost infinite potential for mismanaged or maliciously managed joint custody to inflict instability and psychological harm upon the child" (id., at 211), and observes: "The Braiman decision requires mutual cooperation and parental good-faith as a precondition to joint custody. Because these are scarce and precious commodities in matrimonial disputes, the courts have not been inclined to award joint custody where it is opposed by either parent and where the requisite mutual cooperation is unlikely. The decisions occasionally observe that no matter how attractive joint custody may seem in concept, the commonly encountered lack of parental cooperation renders it impractical in application and potentially detrimental to the best interests of the children." Id., at 212-213.

Query, whether in the circumstances of this case the "preconditions" for a successful joint custody arrangement—mutual cooperation and parental good faith—are so patently lacking that, as Plaintiff urges, it would "defy logic" to find that she agreed to a custody stipulation wherein "unidentified swathes of Major Decisions" exist that are "without any mechanism for resolution"?

The Court notes in this regard that (1) Plaintiff without notice to Defendant left the marital home and removed the children to New Jersey; (2) Defendant improperly and without notice to Plaintiff accessed confidential information on her electronic devices; (3) Plaintiff was so mistrustful of Defendant that when she returned to New York from New Jersey she did not want to disclose her new address to Defendant; and (4) the parties have spent inordinate sums of money—well beyond their personal means—for attorneys fees to litigate an incontestably acrimonious matrimonial litigation. This does indeed suggest to the Court that the parties may not be able to overcome "the incidents of their own estrangement" sufficiently to succeed under a regimen of joint legal custody.

However, it proves too much—why then did Plaintiff agree to joint legal custody at all? Even the limited version of joint legal custody for which Plaintiff advocates is fraught with difficulty. Although the parties are both Catholic it has been made plain herein that disagreement on religious issues was one of the precipitating factors in the demise of their marriage—and yet they have undisputably agreed to mutual decision-making on religion for their children. Choice of schools has also been a significant bone of contention, much discussed in open court, and yet the parties have also undisputably agreed to mutual decision-making regarding the education of their children.

As for the absence of a specified mechanism for resolving issues other than religion/education/health, the Court notes that the Stipulation made in open court contained only the "bullet points" of a custody settlement "subject to a complete custody and access stipulation that we would then ask the Court to so order." The parties are, of course, obligated to negotiate the final custody and access stipulation in good faith. Some matters subject to consultation and mutual decision-making do not rise to the level where the involvement of a PC would be necessary or appropriate. The parties are free to negotiate a more informal dispute resolution mechanism for such matters, or to allocate final authority/responsibility for certain decisions to one party or the other. Moreover, the scope of the final joint custody agreement is constrained by certain relatively well-defined parameters governing its mutual decision-making component. First, as the very term denotes, it applies only to "decisions" and not, for example, to preparatory or executive measures undertaken in connection with decisions. Second, the "decisions" must rise above "day-to-day child rearing decisions", which are entrusted exclusively to "the parent with whom the children are living." See, Trapp v. Trapp, supra.

In conclusion, the Court after considering the law of joint legal custody finds nothing therein that would displace a construction of the parties' Stipulation in accord with the plain meaning of the language they employed. The Court accordingly adheres to its conclusion that by this language the parties agreed to "joint legal custody" without qualification, i.e., without delimitation (other than that inherent in the legal term itself) of the areas of the children's life to which it applies; and further, that their agreement to use a PC "solely for major decisions of health, education and religion" is naturally read not as a limitation of the issues subject to consultation and mutual decision-making, but as carving out a subset of those issues for reference to the PC when the parents reach an impasse.

F. The Specific Actions Complained Of

While joint legal custody requires mutual cooperation on major decisions concerning the children, it also requires on the part of each parent a measure of trust in the good faith and sound judgment of the other, i.e., a recognition that despite their own differences each acts with the true good of the children at heart. The Court finds that Defendant's view of what joint legal custody requires of the parties is incorrect with respect to most of the specific actions by Plaintiff of which he complains.

• The choice of an extended summer camp or program would seem to qualify as a major decision, inasmuch as it would have a significant bearing on the child's well-being and education. Here, however, Plaintiff merely enrolled Lu. at L.'s camp for four days during her own parenting time. As a short-term recreational activity confined to Plaintiff's time with the child, that choice has none of the earmarks of a major decision and was entrusted exclusively to the Plaintiff.

• Similarly, the choice of an extended day care arrangement would seem to qualify as a major decision. In this day and age most day care facilities have and indeed tout educational programs even for two-year olds, as witness here the fact that what Plaintiff calls a day care presents itself as a "nursey school & kindergarten." However, the parties acknowledged in proceedings before this Court that Plaintiff was faced with a need to take prompt action to make arrangements for L. and Lu. upon her recent move, just before the start of the school year, back to New York. Under the circumstances, Plaintiff cannot be faulted for enrolling Lu. after providing Defendant with information concerning the alternatives.

• Taking L. on a new-school visit to get acquainted with the environment, filling out school forms, and bringing him to the doctor for a regularly scheduled physical exam are not "decisions", never mind major decisions. These are all purely executive measures entrusted to the discretion of each parent on his or her own time with the children.

• Plaintiff is free to choose her own Catholic parish, to register the children in her parish, and to take the children to Mass with her when she has them on Sunday. Defendant is likewise free to choose his own Catholic parish, to register the children in his parish, and to take the children to Mass with him when he has them on Sunday. Registration is a purely administrative matter with no impact on the children's religious upbringing. On the other hand, whether they attend Catholic school, where they attend Catholic school, where they pursue religious education, and where they receive their Sacraments are major decisions subject to consultation and mutual decision-making.

G. Conclusion

Items numbered "1(a)" and "2" of Defendant's Order to Show Cause for a declaration concerning the scope and meaning of the parties' June 25, 2024 Stipulation in open court relative to the custody of their minor children are granted to the extent indicated hereinabove. Items numbered "1(b)" and "3" of the said Order to Show Cause are denied, as they relate to matters which remain to be negotiated in good faith as part of the complete custody and access agreement contemplated by the June 25, 2024 Stipulation, the terms of which cannot—without trying custody issues to a conclusion—be imposed upon the parties by the Court.

IT IS SO ORDERED.

The foregoing constitutes the decision and order of the Court."

MATRIMONIAL - ON MAHR PROVISION IN NIKAH AGREEMENT

According to Wikipedia: "The word mahr is related to the Hebrew word and the Syriac word "mahrā", meaning “bridal gift”, which originally meant “purchase-money”. The word implies a gift given voluntarily and not as a result of a contract, but in Muslim religious law it was declared a gift which the bridegroom has to give the bride when the contract of marriage is made and which becomes the property of the wife."

Khan v. Hasan, 2021 NY Slip Op 21236 - Nassau County Supreme Court 2021:

PRELIMINARY STATEMENT

JEFFREY A. GOODSTEIN, J.

Plaintiff ("Husband") filed this motion for summary judgment seeking an order holding the parties' mahr term of their nikah agreement invalid and unenforceable and requesting counsel and expert fees.

Defendant ("Wife") opposes the motion in its entirety seeking an order upholding the validity of the mahr agreement, payment of $50,000 to enforce the agreement, and counsel fees.

BACKGROUND

A nikah agreement is a mutual agreement signed by spouses during their religious marriage ceremony that is typically verified by two male witnesses and includes a mahr provision. (Allison Gerli, Comment, Living Happily Ever After in a Land of Separate Church and State: Treatment of Islamic Marital Contracts, 26 J. Am. Acad. Matrimonial Law. 113 (2013).; Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winners, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam. LQ. 639 (2007)). A mahr provision, or sadaq, is a term in the nikah agreement whereby the husband gives something of value to the wife. (Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winners, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam. L.Q. 639 (2007)). The mahr provision functions to protect the bride's financial interests and independence and is typically only awarded in the case of divorce or upon the husband's death. (Id). The amount of the mahr is typically negotiated by the spouse's relatives prior to the wedding, rather than by the couple themselves. (Id). The mahr is usually paid in two parts, the first is paid immediately at the time of the religious ceremony and the second is deferred until one of the two previously stated occurrences. (Jay M. Zitter, Application, Recognition, or Consideration of Islamic Law by Courts in the United States, 82 A.L.R.6th 1).

At issue here is the enforceability of an unacknowledged deferred mahr that granted the Wife $50,000 upon some unspecified occasion. The parties were married in a civil ceremony on March 2, 2016, in Queens, New York. Following their civil ceremony, on September 12, 2016, the parties were married in a religious ceremony where the nikah containing the mahr provision now in question was signed, and recorded, by the parties in front of two male witnesses, Mufti Abdul Rahman, Imam of Al-Masjid Inc. who performed their Islamic ceremony, and all their guests. It is unclear, but not disputed, whether the Husband ever paid an initial mahr amount to the Wife in accordance with Islamic tradition. It is also unclear when the amount of the mahr was set and whether it was decided with or without the Husband's knowledge and consent.

DISCUSSION

The Husband argues that the parties' mahr agreement is invalid and unenforceable because it is not properly acknowledged in accordance with New York Domestic Relations Law §236(B)(3) which states:

An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Domestic Relations Law §236(B)(3).

Alternatively, the Husband argues the agreement is invalid for a lack of consideration, for being manifestly unfair, and for impermissibly intertwining the court with religion. He asks that the certificate be declared null and void and is requesting counsel fees and expert fees.

The Wife argues that the parties' mahr agreement is valid and enforceable as a legal entity distinct from a prenuptial or postnuptial agreement. Additionally, if the agreement is held valid, she argues it had proper consideration or was ratified by the Husband despite a lack of consideration. Alternatively, she argues that even if the court considers their nikah a postnuptial agreement, it is enforceable because an acknowledgment is not required where there is alternative proof of signing through witnesses. Finally, she argues summary judgment is improper because there are genuine issues of material fact such as the presence of duress, the time, place, and manner of the mahr negotiation, the amount of the mahr, the expectation of the nikah, the benefits conferred in the marriage certificate, and the Husband's expert testimony.^[1]

In reply, the Husband reiterates the mahr's invalidity and unenforceability arguing against the cases proffered by the Wife as controlling precedent.

Here, the Husband argues the mahr agreement is invalid and unenforceable due to the lack of an acknowledgment in violation of New York Domestic Relations Law 236(B)(3). The Husband argues that New York's Appellate Divisions in Matisoff and Galetta are controlling precedent as they collectively establish that a proper acknowledgment is an "essential prerequisite" to comply with the terms of DRL 236(B)(3) and that the document is signed by two witnesses, instead of being acknowledged, does not satisfy the requirements of DRL 236(B)(3). (Matisoff v. Dobbi, 90 NY2d 127 (1997).; Galetta v. Galetta, 21 NY3d 186 (2013)). The Husband concedes that there are four similar cases, Badawi v. Alesawy, O.Y. v. A.G., Aziz v. Aziz, and Avitzur v. Avitzur, that the Wife may try to use as ruling precedent to uphold the agreement. (Badawi v. Alesawy, 135 AD3d 792 (2d Dept. 2016).; O.Y. v. A.G., 48 Misc 3d 1222(A) (Sup. Ct. Westchester Co. 2015).; Aziz v. Aziz, 127 Misc 2d 1013, 488 N.Y.S.2d 123 (Sup. Ct. Queens Co. 1985).; Avitzur v. Avitzur, 58 NY2d 108 (1983)). However, he contends that those cases are not controlling because: (1) the agreement in Badawi was upheld under the doctrine of comity which does not apply here as the parties' marriage and divorce took place in New York; (2) the agreement in O.Y. was never evaluated because the amount in question was de minimis; (3) and, Aziz and Avitzur were decided before Matisoff and Galetta established a rule of strict enforcement on the acknowledgment requirement for nuptial agreements. (Badawi, 135 AD3d 792.; O.Y., 48 Misc 3d 1222(A).; Aziz, 127 Misc 2d 1013, 488 N.Y.S.2d 123.; Avitzur, 58 NY2d 108). Therefore, the Husband advocates for a "bright-line rule requiring an acknowledgment in every case [that] is easy to apply and places couples and their legal advisors on clear notice of the prerequisites to a valid nuptial agreement" as established by Matisoff. (Matisoff, 90 NY2d at 135).

The Wife argues that the court has the authority to enforce the mahr agreement under the precedent of Aziz, Badawi, and In Re Application of Saperstein, using the neutral principles of law approach to resolve this religious dispute without consideration of doctrinal matters. (Aziz, 127 Misc 2d 1013, 488 N.Y.S.2d 123.; Badawi, 135 AD3d 792.; Application of Saperstein, 254 AD2d 88, 678 N.Y.S.2d 618 (1 Dept. 1998).; Jones v. Wolf, 443 U.S. 595, 603, 99 S. Ct. 3020, 3025, 61 L.Ed.2d 775 (defining the neutral principles of law approach as applying "objective, well-established" principles of secular law to resolve religious disputes without delving into religious doctrine itself)). Here, the Wife points to the factually similar case of Aziz in which the court upheld the parties' mahr agreement stating, "the court recognizes that the Mahr, or Islamic marriage contract, is an enforceable document in New York, notwithstanding it was executed pursuant to religious or civil law." (Aziz, 127 Misc 2d 1013, 488 N.Y.S.2d 123). The Wife then points to Badawi in which a court enforced an unacknowledged mahr agreement as its own distinct legal entity, separate from a prenuptial or postnuptial agreement because it violated no strong public policy of New York and was signed by the parties, two witnesses, and the Imam of the Islamic Cultural Center of New York. (Badawi, 135 AD3d 792). Lastly, she argues that even if the court treats the mahr as a postnuptial agreement, it would still be enforceable because an acknowledgment is not required for nuptial agreements when there is alternative proof provided by subscribed witnesses in accordance with Application of Saperstein. (Application of Saperstein, 254 AD2d 88, 678 N.Y.S.2d 618). There, the court held "proof of husband's execution prior to his wife's death of waiver of right to elect against spouse's estate, which was prepared after wife's death by an attorney who signed waiver as subscribing witness, was sufficient to establish validity of waiver, as proof complied with requirements governing recording of conveyance of real property." (Application of Saperstein, 254 AD2d 88, 678 N.Y.S.2d 618). The Wife goes on to posit that as long as the subscribing witness's proof, executed after the execution, complies with the requirements governing the conveyance of real property, the proof will be sufficient to establish validity. Here, the mahr agreement was signed by three subscribing witnesses contemporaneously with the Husband and Wife so the Wife argues either of the three witnesses may provide an alternative to the acknowledgment requirement of DRL 236(B)(3).

In his Reply, the Husband reiterates the Wife's improper citation of Badawi arguing the mahr agreement there was not upheld because it was excused from DRL 236(B)(3)'s acknowledgment requirement but because the court recognized the parties' Abu Dhabi divorce under the doctrine of comity which does not apply here. (Badawi, 135 AD3d 792). The Husband then echoes that the court in Matisoff recognized no exceptions to DRL 236(B)(3) and since the essential acknowledgment requirement is absent, he calls again for the mahr agreement to be invalidated. (Matisoff v. Dobbi, 90 NY2d 127.; Galetta v. Galetta, 21 NY3d 186). Lastly, the Husband emphasizes the specific consideration and rejection of Saperstein's holding in Galetta where the Court of Appeals found that Saperstein, which did not involve DRL 236(B)(3) nor an acknowledgment requirement, did not apply to marital agreements. (Galetta v. Galetta, 21 NY3d 186).

Courts in other jurisdictions have had conflicting views on the treatment and validity of mahr agreements, especially when faced with a constitutional challenge by one of the parties. The Free Exercise and Establishment Clauses of the first amendment are often used by litigants in these cases to dissuade courts from making the decision to uphold religious marriage agreements like the mahr or the Ketubah, a Jewish marriage contract, in "Get" and "Beit Din" cases. These challenges have tended to fail but make compelling dissenting arguments. (See Avitzur, 58 NY2d 108 (1983) (dissent arguing the enforcement of a ketubah would "necessarily violate the constitutional prohibition against entanglement of our secular courts in matters of religious and ecclesiastical content")). More successful litigants have argued the precedent set in Jones v. Wolf in which the Supreme Court approved the "neutral principles of law" approach. (Jones v. Wolf, 443 U.S. 595, 603, 99 S. Ct. 3020, 3025, 61 L.Ed.2d 775). This approach developed out of a series of cases involving property disputes with the church, but it has been applied in other areas of law relating to business contracts, torts, employment, and the type of private agreements at issue here. (Tilsen v. Benson, 2019 Con. Super. LEXIS 2475 (2019)). This approach was used by courts across the country to reach decisions in Odatalla^[2] (New Jersey), In Re Marriage of Obaidi^[3] (Washington), Ravasizadeh v. Niakosari^[4] (Massachusetts), and Avitzur^[5] (New York). The neutral principle of law approach prevents mahr agreements, and other private, religious marriage agreements, from being denied simply because they came about in a religious context allowing them to be enforced based solely on their ability to comply with the "objective, well-established," secular laws. (Jones, 443 U.S. 595, 603, 99 S. Ct. 3020, 3025, 61 L.Ed.2d 775.; Odatalla, N.J. Super. 305.; Tilsen, 2019 Con. Super. LEXIS 2475.; Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winners, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam. L.Q. 639 (2007).; Comment, Living Happily Ever After in a Land of Separate Church and State: Treatment of Islamic Marital Contracts, 26 J. Am. Acad. Matrimonial Law. 113). While courts have struggled at times to apply the neutral principles of law approach to mahr agreement disputes, due to a lack of familiarity with such documents and their vague terms, this approach seems to provide litigants with the fairest outcomes as long as courts remain mindful of the mahr's religious significance and overall purpose. (Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winners, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam. L.Q. 639 (2007)).

Though the constitutionality of enforcing these agreements has been mostly settled by jurisdictions using the neutral principles of law approach, some jurisdictions have run into other issues with the enforceability of mahr agreements. (See Akileh v. Elchahal, 66 So.2d 246, (1996).; In re Marriage of Obaidi, 154 Wn.App. 609, (2010); Ahmed v. Ahmed, 261 S.W.3d 190 (2008).; Zawahiri v. Alwattar, 2008 Ohio 3473 (2008); In Re Marriage of Dajani, 204 Cal.App.3d 1387, 251 Cal.Rptr.871 (4th Dist. 1988)). In those jurisdictions, courts have sometimes found the enforcement of mahr agreements to be against public policy due to a fear that enforcement would "facilitate divorce or separation by providing for settlement only in the event of such an occurrence." (Application, Recognition, or Consideration of Islamic Law by Courts in the United States, 82 A.L.R.6th 1; See In Re Marriage of Dajani, 204 Cal.App.3d 1387, 251 Cal.Rptr.871 (4th Dist. 1988)). While this is a valid concern, it fails to take into account the purpose of the mahr— to protect the wife's financial interests in case of divorce or her husband's death and to "discourage divorce by limiting a husband's otherwise unlimited right to divorce at will" within the Islamic culture. (Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winners, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam. L.Q. at 654 (2007)).

Another issue discussed by some courts in the mahr case law has been the circumstances under which the mahr was signed. In at least one case, Zawahiri v. Alwattar, the husband was not presented with the nikah agreement until two hours prior to the start of the parties' religious wedding ceremony. (Zawahiri, 2008 Ohio 3473 (2008)). Upon dissolution of the marriage, the husband argued the mahr should not be upheld because he signed the agreement under duress as he was too embarrassed and stressed to decline the mahr with guests having already arrived and without having the opportunity to consult an attorney. (Id). The court agreed with the husband and held that the mahr was entered into as a result of "overreaching or coercion" and was therefore invalid. (Zawahiri v. Alwattar, 2008 Ohio 3473 (2008)); See also Application, Recognition, or Consideration of Islamic Law by Courts in the United States, 82 A.L.R.6th at 2 (explaining "proof that a party entered into the mahr under duress can be shown by evidence that the mahr was not discussed until the day of the wedding, that discussions were hurried and took place while guests were arriving, and that the parties did not have an opportunity to consult with counsel before signing, that the groom was not told of the mahr or its details until the time of signing or that he could not understand the negotiations or agreement because they were in a foreign language.").

Finally, a Texas court adjudicated the enforceability of a mahr agreement where the parties were already married in a civil ceremony prior to their religious ceremony when the mahr was signed. Ahmed, 261 S.W.3d 190. In Ahmed, the parties were married in a civil ceremony and had their religious ceremony six months later when they signed their nikah agreement containing a deferred mahr provision of $50,000. (Id). There the court examined the parties' nikah agreement as a premarital agreement and because the Texas Family Code defined premarital agreements as those made by the parties in anticipation of marriage and Texas does not distinguish between civil and religious marriage ceremonies, the parties were already married and the court would not uphold the nikah agreement as a premarital agreement and the case was ultimately remanded to determine the mahr's validity. (Id).

New York courts have not specifically addressed the validity and enforceability of unacknowledged mahr agreements when all the proceedings have taken place in New York. But, even if the New York courts had adopted the "neutral principles of law" approach and applied it to the parties' mahr agreement, it still could not be upheld due to the lack of an acknowledgment. The language, history, and subsequent New York statutory law of DRL 236(B)(3), including the case precedent of Matisoff and Galetta, have clearly created no exception to the acknowledgment requirement. Accordingly, it is hereby

ORDERED, that the Husband's motion for summary judgment is granted and the parties' mahr agreement is not enforceable and is deemed void.

Counsel Fees

Both parties are requesting reasonable counsel fees for having to file and prosecute this action. The Husband is seeking additional expert fees for having hired an expert to prove his claim.

However, as the counsel fee provisions of a matrimonial action do not apply to plenary actions, both parties' requests for counsel fees are DENIED.

All other requested relief, not specifically addressed herein, is hereby DENIED.

This constitutes the Decision and Order of this Court.

[1] The Husband provided an affidavit from Ahmadullah Kamal, who proclaims to be a "scholar of Islam".

[2] Odatalla v. Odatalla, N.J. Super. 305 (2002).

[3] In re Marriage of Obaidi, 154 Wn.App. 609, (2010).

[4] Ravasizadeh v. Niakosari, 94 Mass. App. Ct. 123 (2018).

[5] Avitzur v. Avitzur, 58 NY2d 108."

A MODIFIED SEPARATION AGAREEMENT

The safer practice is to have the modification acknowledged. Standard provision I have utilized states "Neither this Agreement nor any provision hereof, including this Article, shall be amended, waived or modified or deemed amended, waived or modified, except by an agreement in writing duly subscribed and acknowledged with the same formality as this Agreement, except as expressly provided herein." In the decision below, they do not state whether the agreement contained such language.

Schaff v Schaff, 2019 NY Slip Op 04215, Decided on May 29, 2019, Appellate Division, Second Department:

"The plaintiff and the defendant are the parents of three adult children. In 2004, the parties entered into a separation agreement, which was incorporated but not merged into the parties' judgment of divorce entered October 18, 2005, providing that the plaintiff would have residential custody of the parties' children and that the defendant would pay $446 per week in child support. The separation agreement provided that no modification or waiver of any of the terms thereof would be valid unless in writing and signed by both parties.

In December 2016, the defendant moved, inter alia, to modify the child support provisions of the judgment of divorce to reflect two modification agreements to the separation agreement. In support of his motion, the defendant submitted his affidavit in which he averred that the parties entered into two written modification agreements, one dated December 1, 2007 (hereinafter the 2007 writing), and one dated September 4, 2008 (hereinafter the 2008 writing), to modify their separation agreement. The defendant submitted copies of the 2007 writing and the 2008 writing, which he averred were signed by both parties. The 2007 writing provided that the defendant [*2]would have "residential" custody of the parties' daughter and their two sons would "remain residing" with the plaintiff. The 2007 writing also provided that, in light of the change of residential custody of their daughter, the new child support amount payable by the defendant to the plaintiff would be $1,256 per month. The 2008 writing provided, in part, that "[c]hild support will end effective immediately." The plaintiff opposed the defendant's motion, and cross-moved for, inter alia, a determination of the defendant's child support arrears.

By order dated July 10, 2017, the Supreme Court determined that the 2007 writing and the 2008 writing were enforceable modifications of the separation agreement and directed a conference, and, thereafter, if necessary, a hearing, to aid in the determination of the remaining issues in the defendant's motion and the plaintiff's cross motion. The plaintiff appeals.

So much of the order as directed a conference, and thereafter, if necessary, a hearing, did not dispose

……..

Contrary to the plaintiff's contention, the defendant was not required to institute a plenary action, as he was seeking to enforce the terms of the parties' separation agreement, which he asserts were modified by the 2007 writing and the 2008 writing (see Campello v Alexandre, 155 AD3d 1381, 1382; Gavin v Catron, 35 AD3d 354, 355; Luisi v Luisi, 6 AD3d 398, 400; Taylor v Taylor, 251 AD2d 175, 175-176). The separation agreement was incorporated but not merged into their judgment of divorce, and the separation agreement permitted written modifications, signed by both parties. By the express terms of the judgment of divorce, the Supreme Court retained jurisdiction to enforce the terms of the separation agreement.

We agree with the Supreme Court's determination that the 2007 writing and the 2008 writing are enforceable modification agreements to the parties' separation agreement. Contrary to the plaintiff's contentions, because the parties were no longer married at the time of the execution of the 2007 writing and the 2008 writing, those agreements did not need certificates of acknowledgment in order to be enforceable (see Domestic Relations Law § 236[B][3]; Penrose v Penrose, 17 AD3d 847, 848; Hargett v Hargett, 256 AD2d 50, 50).

A separation agreement is a contract subject to the principles of contract construction and interpretation (see Matter of Meccico v Meccico, 76 NY2d 822, 823-824; Matter of Tammone v Tammone, 94 AD3d 1131, 1133; Fishbein v Fishbein, 72 AD3d 1021, 1021). Accordingly, where the language of the agreement is clear and unambiguous, the court should determine the intent of the parties based on that language without resorting to extrinsic evidence (see Matter of Tammone v Tammone, 94 AD3d at 1133; Fishbein v Fishnein, 72 AD3d at 1021-1022). Here, the 2007 writing and the 2008 writing are unambiguous (see Matter of Meccico v Meccico, 76 NY2d at 823-824; Fishbein v Fishbein, 72 AD3d at 1021-1022; Kosnac v Kosnac, 60 AD3d 636, 637; Winski v Russo Kane, 33 AD3d 697, 698). Accordingly, the Supreme Court was not required to conduct a hearing and we agree with the court's determination that the 2007 writing and the 2008 writing are enforceable (see Schron v Troutman Sanders LLP, 20 NY3d 430, 436; cf. Salinger v Salinger, 125 AD3d 747, 749)."

JUDICIAL SCRUTINY OF A DIVORCE AGREEMENT

Entering into a matrimonial agreement, where the parties waive full financial disclosure and the terms of support are unrealistic, is still subject to judicial review.

Mizrahi v Mizrahi, 2019 NY Slip Op 03040, Decided on April 24, 2019, Appellate Division, Second Department:

"The parties were married on August 15, 1996, and have two children together. On January 15, 2015, the parties entered into a separation agreement. In January 2016, the plaintiff commenced this action for a divorce and ancillary relief and interposed causes of action seeking to set aside the separation agreement. The plaintiff thereafter moved to set aside the separation agreement on the ground, inter alia, of unconscionability, and the defendant cross-moved, among other things, to dismiss the causes of action seeking to set aside the separation agreement. The Supreme Court denied the plaintiff's motion, in effect, granted that branch of the defendant's cross motion which was to dismiss the causes of action seeking to set aside the separation agreement, and, sua sponte, determined that the defendant was entitled to an award of attorney's fees pursuant to the terms of the separation agreement and awarded the defendant attorney's fees in the sum of $4,000 for fees expended in opposing the motion. The plaintiff thereafter moved for leave to reargue her prior motion and, in effect, her opposition to that branch of the defendant's cross motion which was to dismiss the causes of action seeking to set aside the separation agreement. The court granted reargument and, upon reargument, adhered to its original determination. The plaintiff appeals.

"Agreements between spouses . . . involve a fiduciary relationship requiring the utmost of good faith. There is a strict surveillance of all transactions between married persons, especially separation agreements. Equity is so zealous in this respect that a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract" (Christian v Christian, 42 NY2d 63, 72 [citations omitted]).

"Generally, separation agreements which are regular on their face are binding on the parties, unless and until they are put aside" (id. at 71). "Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions. Furthermore, when there has been full disclosure between the parties, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which might vitiate the execution of the agreement, courts should 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 one-sided" (id. at 71-72 [emphasis added]).

"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 AD2d 710, 711; see Hughes v Hughes, 131 AD3d 1207, 1208; Kabir v Kabir, 85 AD3d 1127, 1127). However, because of the fiduciary relationship existing between spouses, a marital agreement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or where it is shown to be manifestly unjust because of the other spouse's overreaching (see Jon v Jon, 123 AD3d 979; Potter v Potter, 116 AD3d 1021, 1022). To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness (see Jon v Jon, 123 AD3d at 979; Kerr v Kerr, 8 AD3d 626, 626-627).

"In general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforceable because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party" (King v Fox, 7 NY3d 181, 191; see Gillman v Chase Manhattan Bank, 73 NY2d 1, 10; Simar Holding Corp. v GSC, 87 AD3d 688, 689). " This definition reveals two major elements which have been labeled by commentators, procedural and substantive unconscionability'" (Simar Holding Corp. v GSC, 87 AD3d at 689, quoting State of New York v Wolowitz, 96 AD2d 47, 67). " The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se'" (Simar Holding Corp. v GSC, 87 AD3d at 689, quoting State of New York v Wolowitz, 96 AD2d at 67).

A reviewing court examining a challenge to a separation agreement "will view the agreement in its entirety and under the totality of the circumstances" (Jon v Jon, 123 AD3d at 980; see Kabir v Kabir, 85 AD3d at 1127-1128; Reiss v Reiss, 21 AD3d 1073, 1074). Here, without a hearing to determine the totality of the circumstances, including the extent of the parties' incomes [*2]and assets and the circumstances surrounding the execution of the separation agreement, it cannot be determined on this record whether equity should intervene to invalidate the parties' separation agreement (see Kabir v Kabir, 85 AD3d at 1127-1128). The plaintiff raised an inference that the parties' separation agreement was invalid, sufficient to warrant a hearing (see Jon v Jon, 123 AD3d at 980).

It is undisputed that the separation agreement was the product of a mediation conducted by the attorney who prepared the document. The separation agreement reflects that the defendant retained counsel to represent him, while the plaintiff did not do so. While the plaintiff consulted with an attorney regarding the separation agreement, the agreement states, in bold print, that the plaintiff's consulting attorney advised her not to sign the agreement "based upon the fact that there has been no discovery in the matter whatsoever, and [the attorney's] considered opinion that the support provisions in the agreement are not adequate to meet the [plaintiff's] and children's basic needs."

The substantive terms of the agreement reveal that, at the time of execution, the plaintiff earned no income, and the defendant represented his income as $100,000 per year "based upon his ability to earn." The defendant agreed to pay $3,000 per month in child support for the parties' two children, and $500 per month in maintenance. The defendant agreed to provide health insurance for the children and to pay 75% of the children's medical expenses not covered by insurance, with the plaintiff to pay 25% of such expenses. No provision was made for the payment of the children's educational expenses, although the defendant agreed to pay a "possible" outstanding balance due to the children's private high school.

The separation agreement provided that the plaintiff would have exclusive use and occupancy of the marital residence, a rental apartment, and that the defendant would pay, for the period between January 15, 2015, and February 1, 2015, the rent, utilities, and carrying charges in connection with the apartment. From February 1, 2015, the plaintiff was responsible for such expenses. Each party was to retain his or her own personal property, except that the defendant waived any interest in rugs and other items in storage in Israel and agreed to pay the storage charges until October 1, 2015. The defendant agreed to pay the plaintiff a lump sum of $45,000, representing an equitable share in his business, identified as EMS 15A, LLC. The agreement did not identify this business as being claimed by the defendant as his separate property, did not describe the nature of the business, and did not place a value on the business. The agreement recited that the parties had waived their rights to disclosure and to the exchange of statements of net worth. The agreement provided that in the event that the validity of the agreement was unsuccessfully challenged, the challenging party would be responsible for the attorney fees and legal expenses of the defending party.

The Supreme Court denied the plaintiff's motion to set aside the separation agreement and, in effect, granted that branch of the defendant's cross motion which was to dismiss the causes of action challenging the agreement on the ground that the agreement was the product of a mediation, that the plaintiff was afforded the opportunity to consult with counsel, and that the plaintiff elected to sign the agreement, notwithstanding the advice of counsel not to do so. We disagree. These facts, standing alone, do not shield the separation agreement from judicial scrutiny. The validity of the agreement is dependent upon an examination of the totality of the circumstances, including an examination of the terms of the agreement, to see if there is an inference of overreaching (see Christian v Christian, 42 NY2d at 72-73). Moreover, the record discloses no information regarding who retained and paid for the services of the mediator, and how the mediator arrived at the substantive terms of the agreement.

It was undisputed that the monthly rent for the marital residence in Forest Hills, Queens, exceeded $5,200 per month. The amount of combined maintenance and child support, payable by the defendant to the plaintiff, who had no other income, was less than the monthly rent. Thus, the amount of support that the plaintiff was to receive was less than her housing expense, let alone sufficient to cover food, clothing, and other expenses. There is no indication that the plaintiff was expected to, or could, obtain reasonable alternative housing at lesser cost. The plaintiff's [*3]affidavit submitted in support of her motion indicated that she was in the process of being evicted from the marital residence due to missed rental payments. The agreement did not provide for the payment of the children's private school tuition, even though the children had attended a private religious school for several years. The record contains no information as to the plaintiff's ability to obtain employment. While the defendant averred that he was diagnosed with end-stage renal disease in March 2015 and that he was working only on a part-time basis, he did not provide any documentation of his condition and his past or present income.

In his opposition to the plaintiff's motion, the defendant averred that his business, EMS 15A, LLC, owns a condominum apartment in Manhattan, which he estimated had a fair market value of $3,200,000 . He claimed that he had purchased the apartment in 2001, borrowing $150,000 from his watch business to make the down payment. He asserted that the watch business was his separate property, he sold part of his interest in the watch business to his brother in 2006, and he used the proceeds of the sale to repay the mortgage on the apartment. On the other hand, he also claimed that he thereafter had taken out $2,595,000 in mortgages on the property, on which he was in default. He did not, however, describe what use he made of the proceeds of the mortgages.

In addition, the parties' affidavits raised questions as to value of the rugs that the plaintiff was to receive under the separation agreement and the nature and extent of jewelry that the plaintiff retained as her property.

Given that the agreement's support provisions were insufficient to cover the rent for the marital residence and other basic needs of the plaintiff and the children, as well as the lack of financial disclosure regarding the value of the defendant's business, condominium, and actual income, questions of fact existed as to whether the separation agreement was invalid, sufficient to warrant a hearing (see Gardella v Remizov, 144 AD3d 977, 980; Jon v Jon, 123 AD3d at 980; Kabir v Kabir, 85 AD3d 1127). Given the lack of any financial disclosure, the Supreme Court should have exercised its equitable powers and directed disclosure regarding the parties' finances at the time the agreement was executed, to be followed by a hearing to test the validity of the separation agreement (see Gardella v Remizov, 144 AD3d at 980; Kabir v Kabir, 85 AD3d at 1128)."