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Decided on September 23, 2008
Supreme Court, Westchester County

18090/2007
Lieberman & LeBovit Attorneys for Plaintiff 345 Kear Street, Suite 210 Yorktown Heights, NY 10598 Barbara Lerman, Esq. Attorney for Defendant 5 Waller Avenue
White Plains, NY 10601
Linda S. Jamieson, J.
In this case, plaintiff's Amended Complaint contains three causes of action: (1) a claim for a divorce based on a separation agreement; (2) a claim for a divorce based on cruel and inhuman treatment; and (3) a claim for a money judgment arising out of the separation agreement. Defendant's motion seeks (1) to dismiss the Amended Complaint and the individual causes of action contained therein; (2) to vacate the separation agreement; and (3) costs and attorneys' fees. Plaintiff's cross-motion seeks counsel fees.
These parties were married in 1991. In 2005, they entered into a purported separation agreement (the "Agreement"). Plaintiff was represented by counsel, who drafted the Agreement. Defendant was unrepresented. In September 2007, plaintiff commenced the instant action. Defendant timely answered the complaint. Among his defenses were two that concern the Agreement. One of the defenses stated that the Agreement is "legally and factually insufficient." The other states essentially that the complaint should be dismissed because no divorce action can be
commenced under the Agreement until December 2010.[FN1] Thereafter, upon consent, plaintiff amended her complaint in May 2008. Defendant did not answer the Amended Complaint.
The motion and cross-motion followed. As set forth below, defendant's motion is granted in part, and denied in part. Plaintiff's cross-motion is denied in full.
The Agreement Is Void As Against Public Policy
The Court has reviewed the Agreement in detail, and determines that it must be set aside as a matter of law. See Christian v. Christian, 42 NY2d 63, 396 NYS2d 817 (1977) (a court [*2]must inquire whether a separation agreement "was just and fair, and equitably ought to be enforced, and administers relief where both the contract and the circumstances require it."). See also Manes v. Manes, 277 AD2d 359, 717 NYS2d 185 (2d Dept. 2000). The Court finds that the following provision contained in the Agreement is entirely improper:
That this Agreement shall be for a period of not less than five (5) years starting from December 2005 to December 2010 and either Husband or Wife thereafter, may file for an action in divorce in which this Separation Agreement shall be incorporated by reference and not merge with the Judgment.
It appears to the Court that this provision of the Agreement purports to preclude either party from filing for divorce for five years, for the period from December 2005 through December 2010. This plainly violates the public policy of this State. P.B. v. L.B., 19 Misc 3d 186, 193, 855 NYS2d 836, 843 (Sup. Ct. Richmond Co. 2008) ("a provision in a separation agreement which attempts to frustrate the right of a party to seek a divorce . . . is against the state's clearly articulated public policy. . . ."). See also Christian, 42 NY2d at 69, 396 NYS2d at 822 ("the statute suggests no condition or restriction on the right of either party to commence the action.").
Plaintiff argues that this provision "merely prevents any cancellation of the [Agreement] during the five year period. Alternatively, the paragraph has no meaning." This argument is meritless. First, any argument that a paragraph in the Agreement has no meaning must fail under black-letter law; it has long been established that all of the language in an agreement must be given meaning, and that selective interpretation or discounting of words is prohibited. See, e.g., R.I. Realty Co. v. Terrell, 254 NY 121 (1930). As for plaintiff's argument that this provision means only that the Agreement cannot be cancelled for five years, it makes no logical sense. If all this provision were to mean is that the Agreement cannot be cancelled for five years, why does it go on to state that "either Husband or Wife thereafter, may file for an action in divorce. . . ." (emphasis added). If the parties may file for divorce "thereafter" (after the five year period, through December 2010), it necessarily follows that they may not file for divorce beforehand. Otherwise, the word "thereafter" is meaningless which, as stated, is not allowed. Id. See also Taylor v. Muss, 13 AD2d 245, 216 NYS2d 249 (1st Dept. 1961).
Since the Agreement purports to limit the parties' ability to file for divorce, it is void as against public policy.
The Agreement Is Also Incomprehensible and Unconscionable
Rather than simply excise the offending provision from the Agreement, the Court determines that the entire Agreement must be voided for two reasons. First, there are numerous passages throughout the Agreement that are not only ambiguous, but entirely incomprehensible. For example, in the section on Custody and Visitation, the first provision states that "The Husband and Wife shall have joint custody of the children, WILLIAM CORSO and HALEY CORSO who shall have physical custody of the children in the marital home." The literal language makes it sound like Haley Corso (one of the children) shall have physical custody.[FN2]This is not the only problem in this Article of the Agreement. The very next provision [*3]states that "The Husband shall have liberal rights of visitation as long as he gives the Wife two (2) hours notice of the visit to the children and overnight visitation to the Husband's home so long as the Wife does not oppose the visit." Again, this language is virtually nonsensical, and susceptible of multiple interpretations: (1) does this mean that upon two hours' notice, defendant gets to see the children whenever he chooses, regardless of plaintiff's views or plans?; (2) does it mean that there will be overnight visitation to defendant's home unless plaintiff opposes such a visit?; or (3) does plaintiff have the right to oppose any visit, whether overnight or not? Counsel for plaintiff argues that the logical meaning must be that defendant has a "remarkably liberal access schedule." However, while this may have been the intent, this is simply not what the plain language of the Agreement states.
Another example of the ambiguous language in the Agreement occurs in Article III, concerning the marital home. One of the provisions in that Article states "That the marital home . . . shall be placed on the real estate market for sale on the emancipation of the last child of the marriage or when the both children have moved or left the marital home." The provision does not go on to state (as would be typical) "whichever occurs first." That means, quite literally, that the marital home does not have to be placed on the market until both children have moved out of the marital home. As defendant correctly points out, that may never occur. Plaintiff argues that defendant's interpretation is "ridiculous," because the intent of the provision is that the home must be sold when the last child is emancipated. While that might have been the purpose of the provision, that is not what the literal language states.
These are not the only examples of problematic language throughout the Agreement.[FN3] Another provision, which plaintiff relies upon in her cross-motion, states that ". . . in the event that either party shall default in any of his or her obligations under this Agreement, or if he or she shall challenge the validity of this Agreement or its interpretation, then that party shall be liable for the cost and expenses of the other party as a result thereof, including, but not limited to, reasonable attorney's fees." Plaintiff claims that this means that only an "unsuccessful challenge to the validity of the [Agreement] should warrant an award of fees." While this might be a reasonable interpretation, it is not what the plain language of the Agreement states. The plain language states that the party who challenges the validity of the Agreement or its interpretation shall be liable for the fees of the other side, regardless of success. This is simply unfair.
Because there are so very many examples of provisions throughout the Agreement that are ambiguous or simply incomprehensible and again, the Court emphasizes that those listed here are only some of them the Court cannot just "blue pencil" the problematic provisions and let the remainder of the Agreement stand. Cf. BDO Seidman v. Hirshberg, 93 NY2d 382, 690 NYS2d 854 (1999). Accordingly, the entirety of the Agreement is void and unenforceable.
The Other Claims
Although this is a long-term marriage and the burden to prove cruel and inhuman treatment is heavy, at this juncture the Court will not dismiss this cause of action. Klein v. Klein, 4 Misc 3d 1026(A), 798 NYS2d 345 (Sup. Ct. Nassau Co. 2004) (in a marriage of long duration, [*4]"the courts have consistently demanded a high degree of proof of cruel and inhuman treatment."). As for plaintiff's third cause of action, which seeks a money judgment for arrears in financial support based on the terms of the now-voided Agreement, it is dismissed. That does not mean, of course, that defendant is absolved from supporting his family. The Court will take into account all of the facts and circumstances when it makes its support determinations.
Each party has also sought attorneys' fees for these motions. Both requests are denied.
The foregoing constitutes the decision and order of the Court.
Dated:White Plains, New York
September, 2008
Hon. Linda S. Jamieson
Justice of the Supreme Court
To:
Footnotes
Footnote 1:Plaintiff urges the Court to deny defendant's motion because he neither commenced a

plenary action nor brought a counterclaim to set aside the Agreement. This is not necessary. Christian v. Christian, 42 NY2d 63, 72, 396 NYS2d 817, 823 (1977) ("If voidable, such an agreement may be set aside under principles of equity in an action in which such relief is sought in a cause of action or by way of affirmative defense.") (emphasis added).
Footnote 2:From the context of the Agreement, as well as the facts presented on these motions, the Court assumes that plaintiff wife has physical custody of the children. But this is not what this provision literally states.
Footnote 3:The Court is not going to belabor the point and explain every problem with the Agreement. Suffice it to say that there are others, including the not-insignificant fact that the
Agreement does not contain the applicable CSSA language.

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