The ex-husband brought this post-divorce civil action against his ex-wife and Alan L. Finkel, the attorney who mediated the spouses’ 2007 divorce settlement agreement, seeking to set aside that agreement.
The husband complained that the child support provisions did not comply with the Child Support Standards Act (C.S.S.A.), that it contained erroneous statements concerning his earnings at the time.
Justice Gazzillo found that the ex-husband had not demonstrated that the Stipulation of Settlement was unfair when made or that there was overreaching in its execution. The Court placed heavy emphasis on the waivers and disclaimers signed by the parties at the time of their mediation. It was clear from the agreement between the parties and the mediator, as well as the Stipulation of Settlement, that the parties were advised to seek guidance from an outside attorney, if they so chose. This was certainly sufficient opportunity for plaintiff to have had the proposed agreement reviewed by an attorney and to have been advised of any questions he had as to its terms. By the terms of the agreement, plaintiff acknowledged that he had the right to obtain counsel, that he knew and understood what he was signing, and that he entered into it freely and voluntarily.
Pertinent portions of the agreement between the parties and The Divorce Mediation Center stated:
At the end … of the first session, you will be asked to complete a financial disclosure package. However, you are free to waive this homework assignment, provided you both agree to do so. … We highly recommend that prior to signing the final agreement, each of you spend sufficient time in fully reviewing it (and bringing it to your attorney, accountant, guru,, parent, sibling, or other adviser or confidant) to be confident that it contains everything you need, and that the agreement is fair.
Each of the parties executed a Financial Waiver on May 27,2005 which stated:
The undersigned being advised by The Divorce Mediation Center of Suffolk, Inc., that full financial disclosure is mandatory in any matrimonial dissolution, hereby waives the filling out and filing of’a net worth statement in this matter. I understand that this may effect my ability to recover any hidden assets in the future and have been advised against this by The Divorce Mediation Center, Inc. However, fully voluntarily, I hereby waive the right to same.
Moreover, Mr. Finkel’s mediated agreement confirmed:
In connection with this Agreement, both parties have agreed to allow the Director of ‘The Divorce Mediation Center of Suffolk, Inc., Alan L. Finkel [to] prepare this Separation Agreement, while not representing either party. Mr. Finkel nor any of his staff has not acted as an attorney in the Mediation, however, is an active matrimonial attorney, duly admitted to practice before the Courts of the State of New York. Both parties fully recognize that Mr. Finkel has not represented, nor does he represent either party, and has prepared this Agreement at the request of both parties. … Both parties acknowledge that they have had ample opportunity to address and discuss with their respective counsel or such other advisors as they deemed appropriate any questions and issue that they may have respecting the standard of living established during their marriage.
There was no allegation made that the ex-husband was unaware of his income or that he did not know that the mortgage industry in which he was employed was in a decline prior to, or at the time, he executed the agreement.
Moreover, four years had elapsed from the time the stipulation was executed until the ex-husband first alleged that his adjusted gross income as stated in the agreement was not correct. Thus, the ex-husband ratified the agreement by complying with its terms and failing to seek nullification until four years after its execution.
Accordingly, Justice Gazzillo granted the defendants summary judgment dismissing the complaint.
Mejias, Milgrim & Alvarado, P.C., of Glen Cove, represented the ex-husband; The Sallah Law Firm, P.C., of Holtsville represented the ex-wife; Mr. Finkel represented himself.