                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 25, 2016                    521569
________________________________

ASHU RUPARELIA,
                     Respondent,
     v                                       MEMORANDUM AND ORDER

KIRSTY RUPARELIA,
                    Appellant.
________________________________


Calendar Date:    January 6, 2016

Before:   McCarthy, J.P., Garry, Rose and Devine, JJ.

                              __________


     John T. Casey Jr., Troy, for appellant.

      Miller Mayer, LLP, Ithaca (R. James Miller of counsel), for
respondent.

                              __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Rumsey, J.),
entered January 27, 2015 in Tompkins County, ordering, among
other things, enforcement of the parties' separation agreement,
upon a decision of the court.

      Plaintiff (hereinafter the husband) and defendant
(hereinafter the wife) were married in Canada in 1994, moved to
the United States the following year and have three children
(born in 1995, 1998 and 2003). The husband is a medical doctor
and the wife has a Master's degree in social work. In 2011,
serious marital discord prompted them to participate in mediation
regarding the various issues implicated in dissolving the
marriage. They agreed during mediation to many matters
including, as relevant here, the division of assets, spousal
maintenance and child support. Those terms were formally set
                              -2-                521569

forth in a separation agreement, which the parties executed in
June 2011.

      The husband commenced an action in December 2011 seeking a
no-fault divorce that incorporated the terms of the separation
agreement. The wife counterclaimed to rescind the separation
agreement, then commenced an action for the same relief. Supreme
Court consolidated the actions and, after a nonjury trial,
rendered a thoughtful and detailed decision finding that the wife
had failed to establish sufficient grounds to set aside the
separation agreement. The parties acknowledged that child
support needed to be recalculated, which was accomplished by
Supreme Court. A judgment of divorce incorporating the
separation agreement was then entered, and the wife appeals.

      The wife argues that Supreme Court erred in not rescinding
the separation agreement but, "[w]hile a separation agreement
will be more closely scrutinized by the courts than ordinary
contracts given the fiduciary relationship between husband and
wife, [it] will not be set aside unless there is evidence of
'overreaching, fraud, duress or a bargain so inequitable that no
reasonable and competent person would have consented to it'"
(Empie v Empie, 46 AD3d 1008, 1009 [2007], quoting Curtis v
Curtis, 20 AD3d 653, 654 [2005]). "[S]pouses are encouraged to
resolve their own issues and, for that reason, judicial review of
such agreements should be exercised sparingly and courts should
not 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" (Bishopp v
Bishopp, 104 AD3d 1121, 1122 [2013] [internal quotation marks,
citations and brackets omitted]; see Marin-Brown v Brown, 79 AD3d
1302, 1303 [2010]). "Indeed, a separation agreement is not
per se unconscionable simply because marital assets are divided
unequally, because one spouse gave away more than that spouse
might have been legally required to do, or because the spouse's
decision to approve the agreement might be characterized as
unwise" (Lounsbury v Lounsbury, 300 AD2d 812, 814 [2002]
[internal quotation marks, citations and brackets omitted]; see
Cheruvu v Cheruvu, 59 AD3d 876, 878 [2009]). Where, as here, a
trial has been conducted, we accord "deference to the trial
court's findings on issues of witness credibility due to its
                              -3-                521569

advantage of observing the witnesses during the course of their
testimony" (Broer v Hellermann, 2 AD3d 1247, 1248 [2003]).

      The separation agreement provided, in pertinent part, that
the husband kept the marital home with a net worth of $300,000
(i.e., a $650,000 value encumbered by a $350,000 mortgage assumed
by the husband) and the wife received a $250,000 cash payout from
the husband, which she used to complete the transaction on a
$208,000 home that she had contracted to purchase. The wife kept
a cottage on Lake Ontario and the husband a vacant lot in
Jefferson County, with agreed upon values of $350,000 and
$70,000, respectively. Each retained their premarriage Canadian
retirement funds and further agreed that their individual
retirement accounts would remain separate property. The husband
was also a partner in a medical practice, and the wife waived any
interest she might otherwise have had in that practice.

      The husband, whose annual income exceeded $400,000, agreed
to pay the wife maintenance of $70,000 per year for five years as
well as her health insurance and uncovered medical costs for
three years. The husband accepted the responsibility to pay the
children's college expenses, their medical insurance and
uncovered health expenses and monthly child support of $1,667 for
the three children, reduced to $1,417 for two children and $1,259
for one child. Supreme Court modified the monthly child support
to $3,602 (three children), $3,105 (two children) and $2,112 (one
child) during the time that the wife received maintenance and,
after maintenance ceased, to $4,202 (three children), $3,622 (two
children) and $2,463 (one child).1

      The wife asserts that the husband purposely hid some assets
and he verbally abused and threatened her, and that her recent
cancer treatment had diminished her ability to make sound
decisions. The primary assets that she claims were not revealed
by the husband included a $294,000 joint Vanguard account – which
the husband liquidated to pay the wife $250,000 under the


    1
        Under the separation agreement, child support continues
to the later of age 21 or completion of four years of post-high
school education (not to extend beyond age 24).
                              -4-                521569

agreement and to pay down the mortgage on the primary marital
residence – and a retirement account from the husband's practice
valued at $112,000 as of June 2011. The Vanguard account was a
joint account, however, and the wife acknowledged seeing the
statements arrive in the mail. While she elected not to give
much attention to their finances, it is apparent that the husband
was not hiding this or any other asset. The record accordingly
supports Supreme Court's finding that the wife was aware of the
accounts. The wife also acknowledged that she did not want to
pursue a claim for any value in the husband's share of the
medical practice, despite being aware that she could do so. She
was told by the mediator that she could seek legal counsel at any
time, and she had friends who repeatedly urged her to consult an
attorney. The wife knew that the husband was getting more than
half of the marital assets. She nevertheless chose to accede to
that division of assets, and the proof at trial suggested that
she did so in an effort to quickly settle matters so that she
could close on a home that she had contracted to purchase.

      Although there was hostility as the marriage dissolved, the
proof found credible by Supreme Court did not establish a level
of duress or undue influence sufficient to rescind the agreement.
Nor was there competent evidence establishing that the wife's
medical condition prevented her from adequately understanding and
freely entering into the agreement. The record reveals two
mature and well-educated individuals who, with the assistance of
a professional mediator, elected to negotiate over several weeks
to divide their substantial assets as well as address other
issues in dissolving their marriage. The wife communicated
certain goals to the mediator, most of which she achieved, and
chose not to consult with an attorney despite being told by
several individuals that she should do so. In short, while the
resulting agreement unequally divided marital assets and was
arguably unwise for the wife to accept, it was not unconscionable
or so disproportionate that no reasonable person would agree to
it (see Mesiti v Mongiello, 84 AD3d 1547, 1550 [2011]).

      We are unpersuaded by the wife's contention that Supreme
Court erred in its determination of child support. The court
properly considered the appropriate factors, including Domestic
Relations Law § 240 (1-b) (f) regarding combined parental income
                              -5-                  521569

exceeding $141,000 (see Domestic Relations Law § 240 [1-b] [c]
[3]; see also Social Services Law § 111-i [2] [b]). Its award of
an additional 10% of the income exceeding $141,000 did not
constitute an abuse of discretion under the circumstances (see
e.g. Vantine v Vantine, 125 AD3d 1259, 1262 [2015]; Quinn v
Quinn, 61 AD3d 1067, 1072 [2009]). Nor did Supreme Court err in
awarding durational maintenance as set forth in the separation
agreement (see Domestic Relations Law § 236 [B] [3]; Cheruvu v
Cheruvu, 59 AD3d at 879; Broer v Hellermann, 2 AD3d at 1248-
1249).

     McCarthy, J.P., Garry and Rose, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
