The following papers were read on this application by the Defendant, Ferial Ounadjela-Visser, seeking an Order:

a) rescinding [the] Settlement Agreement in the matrimonial action dated August 14, 2024, based on a claim that it was signed under duress by the Defendant; and b) such [*2]other and further relied as this Court may deem just and proper.

Upon the foregoing papers, the application is decided as follows:

The parties were married on February 12, 2011, in Paris, France in a civil ceremony. This is the second marriage for both parties. There are three unemancipated children of the marriage, E.V. (d.o.b. 8/4/2011), G.V. (d.o.b. 3/22/2013), and I.V. (d.o.b. 3/25/2016) (hereinafter referred to as the "Children").

Plaintiff, Michiel Visser, commenced this action for divorce by filing a Summons with Notice via New York State Courts Electronic Filing (hereafter "NYSCEF") on November 16, 2023. (NYSCEF DOC 1). Plaintiff filed a Verified Complaint on December 27, 2023 (NYSCEF DOC 43). The Defendant filed a Verified Answer on January 18, 2024 (NYSCEF DOC 56).

On April 29, 2024, the parties retained Neil Kozek, Esq. of Kozek PLLC to mediate the resolution of all issues related to the matrimonial action. A Note of Issue and Certificate of Readiness was filed by Plaintiff on May 24, 2024 (NYSCEF DOC 109).

The parties appeared for a pre-trial conference on August 13, 2024. Since settlement negotiations were ongoing, this Court granted additional time for the parties to reach a resolution. Overnight and into the early morning hours of August 14, 2024, the parties finalized and signed a Stipulation of Settlement ("Agreement"). By this Agreement, the parties reached a global resolution including equitable distribution and child custody, spousal support, and child support (NYSCEF DOC 196). The Agreement was signed in the presence of the mediator and the parties' attorneys. The Plaintiff was represented by Aronson Mayefsky & Sloan, LLP. The Defendant was represented by Blank Rome, LLP.

Pursuant to the Agreement, the parties agreed to joint legal custody with Defendant entitled to primary residential custody of the Children. A Parenting Coordinator would be selected to resolve disagreements as to major decisions for the Children. The parties stipulated to work towards a 50/50 access schedule, including equal parenting time on holidays and school breaks. The Defendant agreed to withdraw the Temporary Order of Protection (which had been issued and extended throughout the matrimonial action) without prejudice.

In the General Provisions paragraphs of the Agreement, the parties stated, in pertinent part:

Each Party is satisfied that the terms and provisions of this Agreement are fair and equitable. Each Party acknowledges that he or she: (a) is entering into this Agreement freely and voluntarily; (b) has had full and complete opportunity to ascertain and weigh, to his or her complete satisfaction, all of the facts and circumstances likely to influence [*3]his or her judgment; (c) has had the opportunity to seek and obtain legal advice independently of the other Party; (d) has had the opportunity to be fully apprised of his or her respective legal rights; (e) has had the opportunity to have the provisions hereof fully explained; (f) has read every part of this Agreement before signing it; and (g) clearly understands and assents to all provisions hereof. Each Party also acknowledges that he or she is executing this Agreement freely and voluntarily and not as the result of any fraud, coercion, or duress. Each Party further acknowledges that he or she is not entering into this Agreement on the basis of any representation, promise, warranty or commitment, and specifically waives any right he or she may have to allege any reliance upon any representation, promise, warranty or commitment in any action to alter, modify, or set aside this Agreement or for other similar equitable or legal relief.

The parties agreed that their rights and obligations would be construed by the laws of the State of New York. In the Agreement, the parties stipulated that they had a "full and fair opportunity to negotiate and revise the terms of hereof and to contribute to the substance and form of the Agreement." Said Agreement would be incorporated but not merged with the Judgment of Divorce but would survive and be enforceable as a binding contract between the parties.

Also, the prevailing party in an action by either party to set aside the Agreement, would be entitled to attorney's fees made necessary by defending such action.

On August 14, 2024, the parties appeared before this Court and were allocuted regarding the Agreement. Both parties stated that

i) they had sufficient time to review the Agreement with their respective counsel,

ii) they understood the Agreement,

iii) there were no outstanding questions,

iv) the Agreement was a full resolution of any and all claims during the matrimonial action,

v) they understood that they had a right to a hearing on any and all claims within the action and that entering this Agreement was a waiver of that hearing right, and

vi) they desired to proceed with the Agreement.

THE COURT: Did anyone force, threaten, coerce or promise you anything to enter into the agreement; sir?

MR. VISSER: No, your Honor.

THE COURT: Ma'am?

MS. OUNADJELA-VISSER: No, your Honor.

THE COURT: So, Mr. Ward was just raising that since the agreement was signed very early this morning and you had worked on the resolution throughout the day yesterday into the morning hour that you felt that you had the sufficient capacity, you were not too tired, you were not under any duress or anything like that to enter into the agreement. So none of those circumstances were present when you signed the agreement, correct, sir?

MR. VISSER: Correct.

THE COURT: Ma'am?

MS. OUNADJELA-VISSER: Correct. (NYSCEF DOC 243)

The Agreement was incorporated, but not merged into the Judgment of Divorce, which [*4]was signed on August 30, 2024.

On Friday, August 16, 2024, the Defendant filed a Notice of Motion pro se seeking to set aside the parties' Agreement (Motion Sequence No. 4) due to claims that she was "coerced into signing the agreement under duress." She then filed two Affidavits in Support, one filed simultaneously with her Notice of Motion on August 16, 2024 (NYSCEF DOC 199), and the second on August 19, 2024 (NYSCEF DOC 204). On August 26, Defendant filed an additional letter with Exhibits in further support of her Motion (NYSCEF DOC 231). Plaintiff's counsel filed an Affirmation in Opposition and a Memorandum of Law with supporting exhibits opposing the Defendant's Motion (NYSCEF DOC 240-246).

Party Contentions

Pursuant to her Motion to set aside the parties' Agreement, the Defendant contends that the Agreement she signed was not what she envisioned after a "grueling twenty-two hours of negotiation" and a culmination of two "intense and expensive weeks of failed settlement discussions." She argues that the terms of the agreement that mediator, Neil Kozek, Esq., had recommended and she agreed to on August 1, 2024, were changed drastically in the overnight negotiations. She also alleges that her own attorney, Brett Ward, Esq., of Blank Rome pressured her to sign the Agreement and threatened that he would not represent her the next day if she chose to go to trial. She states that she left the negotiations at 11:00 pm in frustration but was persuaded by her brother to return and press on. Defendant claims that she suffered a nervous breakdown and was physically and mentally exhausted by the time she signed the Agreement at around 6:00 a.m. Defendant claims despite her explicit and repeated statements that she could not understand the terms and her refusal to sign under such circumstances, she was "coerced into signing the Agreement under duress, with the threat that the Court would punish" [her] if [she] did not comply" (Affirmation in Support by Defendant, pro se, NYSCEF DOC 199).

Defendant also claims that during the two-week period prior to signing the Agreement, she was suffering from Covid-19 and had sustained a concussion from a fall, rendering her unable to meaningfully participate in settlement negotiations. To support her claim, Defendant submitted a doctor's note dated August 26, 2024, indicating she was "unable to effectively participate in legal proceedings." According to the Defendant, she persevered in a weakened state to participate in the mediation process/prepare for trial against medical advice (NYSCEF DOC 231).

Defendant contends that the Agreement she was coerced to sign had several provisions that jeopardized her children's safety, and the child support was "utterly modified" without her "consent or disclosure" (id.).

In her Affidavit in Support dated August 19, 2024, the Defendant expressed frustration that the final version of the Stipulation she signed had supervised visitation ending immediately against her wishes. As an immediate consequence of the Agreement being put into place, the Plaintiff requested unsupervised access to the Children for the first weekend after signing the Agreement.

In his opposition, Plaintiff, by counsel, states that since the parties' retention of Neil Kozek, Esq. to mediate, the parties met on at least eight occasions over three months. Plaintiff notes that during the negotiations on August 13, 2024, Plaintiff agreed to use a term sheet drafted by the Defendant because she was fully familiar and more comfortable with it. On the morning of August 14, 2024, prior to notarizing Defendant's signature, Neil Kozek, Esq. [*5]confirmed with the parties that they were signing the Agreement voluntarily and of their own free will. Defendant confirmed that she understood the agreement and was signing voluntarily. Within hours of signing, the parties were allocuted extensively to confirm to the Court that they were entering into the Agreement knowingly and voluntarily.

Plaintiff's counsel notes that, in her own Affidavit in Support, Defendant admits that Blank Rome refused to file the motion to rescind the Agreement on her behalf. Counsel further argues in her Memorandum of Law that "buyer's remorse" falls far short of the standard for rescission of a matrimonial agreement.

Plaintiff seeks counsel fees for having to defend Defendant's motion.

Agreements between spouses are subject to "ordinary principles of contract law" (Levine v. Levine, 56 NY2d 42, 47 [2d Dept 1982]. It is well settled that marital settlement agreements are judicially favored and are not to be easily set aside (see Johnson v. Ranger, 216 AD3d 925,926 [2d Dept. 2023]). This is particularly the case with agreements that are made on the record in open court with allocution (see Strang v. Rathbone, 108 AD3d 565 [2d Dept. 2013]). Thus, where the agreement is "fair on its face, and absent fraud, overreaching, mistake, duress, vacatur is not warranted and the stipulation will not be disturbed by the Court" (Ruxton v. Ruxton, 181 AD2d 876, [2d Dept. 1992]).

A party seeking to set aside a stipulation of settlement has the burden of showing that it resulted from duress, fraud, or overreaching, or that its terms were unconscionable (see Campione v. Alberti, 98 AD3d 706 [2d Dept. 2012]). "A stipulation will not be vacated simply because a party, after the fact, believes that the agreement was improvident in some respect or that it constituted a bad bargain" (Cohen v. Cohen, 170 AD3d 948, 949 [2d Dept. 2019]).

An unconscionable bargain is one which "no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" (Morad v. Morad, 27 AD3d 626, 627 [2d Dept. 2006]).

For a stipulation of settlement to be set aside on the ground of duress, the movant must make a showing that they were "forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will" Shah v. Mitra, 171 AD3d 971.976 [2d Dept. 2019]. Generally, the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing (id.).

Similarly, a contract may be set aside on the grounds of coercion "whenever a party is so situated as to exercise a controlling influence over the will, conduct and interest of another (id.). Generalized contentions that a party felt pressured are insufficient (id.); (see also Cavalli v. Cavalli, 226 AD2d 666, 667 [2d Dept. 1996]).

In McCaul v. McCaul, 179 AD3d 785, 786 [2d Dept 2020], the Second Department affirmed that the moving party had failed to establish that vacatur of the Stipulation was warranted because,

Plaintiff was represented by independent counsel in the divorce action, the parties engaged in financial disclosure the plaintiff [movant] received substantial benefits pursuant to the stipulation of settlement, and the stipulation recites that it was entered into freely, knowingly, and voluntarily, and that the parties had not been threatened or [*6]coerced into entering it. Moreover, the evidence of the meaningful benefits to which the plaintiff was entitled pursuant to the Stipulation of Settlement established that it is not unconscionable (see also Morad v. Morad, 27 AD3d 626, 627 [2d Dept. 2006]).

Finally, as stated in Lukaszuk v. Lukaszuk, 304 AD2d 625, 625 (2d Dept. 2003), as a general rule,

A party's competence to enter into a binding contract is presumed. In order to establish the requisite incapacity to set aside an agreement, the moving party must show he/she "was suffering from a mental illness or defect which rendered [the party] incapable of comprehending the nature of the transaction or making a rational judgment concerning the transaction, or that by reason of mental illness [the party] was unable to control [his or her] conduct.

In this case, the Defendant had a full and fair opportunity to negotiate the terms of her own Agreement outside the purview of this Court and risked a potentially less favorable outcome at trial. She had the benefit of independent counsel. She also had the added benefit of a mediator. Insofar as the parties spent three months extensively negotiating a settlement prior to signing the Agreement, there is no doubt that they had sufficient time to discuss and negotiate the terms of their divorce many times over.

Although the Defendant claims she was in a weakened state due to medical issues and mental stress, she concedes in her own papers that she continued to negotiate the settlement against medical advice. No one forced or pressured her to continue negotiations while feeling ill. She produced medical records and a doctor's note dated August 26, 2024, as support of her claim that she should not engage in the legal process. Yet, her motion papers are dated August 16, 2024, with further submissions up to and including August 26, 2024.

Despite her contentions, on August 14, 2024, the Defendant signed and initialed every single page of the Agreement settling the divorce. This was after months of active participation and input into the process with the assistance of independent and competent counsel. Then, that same day, she was allocuted extensively. Specifically, both parties were asked whether anyone forced, threatened, coerced, or promised anything to enter into the Agreement. Both answered in the negative.

This motion was filed pro se, despite the Defendant having been represented throughout the litigation by Blank Rome, LLP. In response to this motion, Blank Rome, LLP immediately submitted an application to withdraw as her attorneys.

It is noted that the Defendant derived substantial financial benefit from the Agreement in terms of the marital residence, her share of the valuation of Plaintiff's interest in his law firm, bank accounts, retirement accounts, counsel fees and professional fees, child support and add-ons, as well as spousal support. The Defendant was awarded primary physical custody of the Children. A reasonable access schedule with a gradual increase to 50/50 access and the assistance of a mutually agreed parenting coordinator was implemented in the Agreement as a safeguard for both the Defendant and the Children. This, in and of itself, is evidence that the Agreement was not unconscionable. There is no evidence that anyone, including counsel for the Plaintiff, her own counsel, or the mediator coerced the Defendant to sign the Agreement under duress, or that she feared for her safety, bodily harm, or her free will. In her own words, she [*7]expressed this in the Agreement and again, on the record, with no hesitation.

Based on the foregoing, the Defendant's motion to set aside the Agreement dated August 14, 2024, must be denied pursuant to well settled law. The Agreement will not be disturbed and will remain incorporated but not merged and shall survive the Judgment of Divorce dated August 30, 2024.

The Plaintiff's request for counsel fees, although allowable under the terms of the parties' Agreement, for defending this action, are hereby denied subject to the filing and submission of itemized billing statements.

Any relief specifically not granted or otherwise addressed herein is denied.

Accordingly, it is hereby:

ORDERED that Defendant's Motion Sequence 4 is denied; and it is further

ORDERED that Plaintiff's counsel shall serve a copy of this Decision and Order with Notice of Entry, by January 6, 2025, and by that date shall file a copy of same with proof of service; and it is further

ORDERED that Plaintiff's counsel submit itemized billing statements for the Court's review regarding the counsel fee application; and it is further

ORDERED that any relief requested and not decided herein is denied; and it is further

ORDERED that all parties are directed to appear for trial on the 5th day of February 2025 regarding motion sequences 6 and 7.

The foregoing constitutes the decision and order of the Court.