This court referred issues regarding the validity of the parties’ agreement made in contemplation of their marriage [the "prenuptial agreement"] to a Special Referee. This hearing was held before Special Referee Marilyn B. Dershowitz who filed a report, dated June 2, 2003, containing her findings, conclusions of law and recommendations [the "referee's report"]. The referee recommended that the court find the prenuptial agreement as valid, except for the child support provisions, which she recommended the court find are invalid.Plaintiff moves to confirm the referee’s report and defendant cross moves to have the recommendations of the referee rejected by the court. Defendant further seeks to have this court make new conclusions and findings, based upon the record developed before the Referee. Alternatively, she asks the court to reject the report altogether and order that a de novo trial be held before a different special referee or the court.Discussion1. Preliminary factsThe parties signed the prenuptial agreement on July 1, 1991. They became engaged that same month. The parties were then married on June 7, 1992. They have two children, Jacqueline [dob July 24, 1993] and Gabrielle [dob June 30, 1996]. This divorce action was commenced March 22, 2001. Defendant interposed an answer with a counterclaim contesting the validity of the prenuptial agreement.2. The terms of the prenuptial agreementThe prenuptial agreement provides, in relevant part, that the separate property of each spouse, including any enhanced value and/or appreciation occurring during the marriage, remains the separate property of that spouse. It, however, further provides that upon dissolution of the marriage, each party waives spousal support from the other. If they only physically separate and no matrimonial action is commenced, then plaintiff is required to provide payments of $2,500 per month to defendant.The agreement also provides for a certain lump sum payment to be made by plaintiff to defendant. The amount of the payment increases with the duration of the marriage. She is entitled to $50,000 if the marriage ends within the first two years of marriage. Thereafter, the amount increases by an additional $15,000 for each year or part thereof that the parties remain married, up to a maximum of five years. The lump sum payment then increases by $35,000 for each year they remain married after the fifth year of marriage up through and including the 10th year of marriage. After 10 years of marriage, the payment/distribution is capped at $350,000 – unless husband’s net worth is less $2.4 million. In that case, he is entitled to a proportionate decrease in the capped amount, according to a formula included in the agreement.The agreement further provides that plaintiff has to purchase a house in his own name, with a value of up to $200,000, for defendant and the children to live in. He is required to pay all the carrying charges until the time of children’s emancipation, or defendant’s remarriage or cohabitation with a male who is not a relative.With respect to child support, income against which child support may be calculated, is capped at $80,000, with all “discretionary expenses” waived. Statutory add-ons are addressed, but there is no allocation for these expenses. Educational expenses are only mentioned, but also remain unallocated.3. The law applicable to a review of a Referee’s ReportCPLR §4403 governs those motions made to either confirm and/or reject the report and recommendations made by a Special Referee. Where there are questions of fact heard, the referee must recommend how to determine the issues presented, as well as how to resolve conflicting testimony and matters of credibility. As a general rule, the court will not disturb the Referee’s findings, and the report should be confirmed, if the findings are supported by the record and if s/he has clearly defined the issues, and resolved matters of credibility. Kaplan v. Einy, 209 AD2d 248 (1st Dept. 1994); Freedman v. Freedman, 211 AD2d 580 (1st Dept. 1995); The Board of Managers of the Boro Park Village-Phase I v. Boro Park, 284 AD2d 237 (1st Dept. 2001).Pursuant to CPLR §4403 the court may confirm or reject in whole or in part any report made by a Special Referee. The court may also make new findings, with or without the taking of additional testimony. The Referee’s recommendations, however, are entitled to great weight, since as the trier of fact, s/he had the opportunity to see and hear the witnesses and observe them on the stand. Frater v. Lavine, 229 A.D.2d 564 (2d Dept. 1996).4. Child SupportNeither party seeks objects to the Referee’s conclusion that the child support provisions of the prenuptial agreement are neither valid nor enforceable. Accordingly, that part of the Report is confirmed and the issue of child support will be determined by the court along with any other issues that remain in the underlying divorce action. The court notes that the Referee’s recommendation, to invalidate one portion of the pre-nuptial agreement, but to also find other provisions valid, is consistent with the severability provision in the prenuptial agreement itself. See also: Christian v. Christian, 42 NY2d 63 (1977).5. Claim of BiasDefendant claims that to the extent the Referee made unfavorable findings against her, they are the product of bias. She asks for new findings or a hearing de novo on the issues presented to the Referee.Defendant has failed to demonstrate any of the traditional indicia of bias, which would warrant the drastic relief she seeks. She has not shown that the Referee had any personal interest in the outcome of the case or that she possessed information from outside sources which she used to formulate her decision. Goldsmith v. De Buono, 665 N.Y.S.2d 727, N.Y.A.D. 3 Dept. (Dec. 4, 1997); Ortiz v. City of New York, 518 N.Y.S.2d 913 N.Y. Sup.1987 (July 31, 1987).Defendant insinuates that the Special Referee was favorably inclined towards the testimony of attorney Weltz, who represented defendant in the signing of the pre nuptial agreement, because they were once contemporaries as Law Secretaries to judges. This issue was never raised at the hearing. Even so, a passing familiarity between the bench and bar is common and of no import unless it interferes with the jurist’s ability to remain impartial. Defendant has failed to show any such interference or any actual relationship between the Referee and the witness from which to conclude interference.Defendant’s argument of bias hinges more on her perception that rulings and unfavorable comments were made against her. There is nothing to suggest that the rulings were based upon anything other than what the Special Referee saw and heard at the trial. The fact that defendant may disagree with the rulings or find many parts of plaintiff’s testimony incredible, is not a basis from which this court can conclude bias. There are always winners and losers in litigation. Additionally, many of the rulings about which defendant now complains, were legally sound and the “comments” she relies upon to prove bias were benign.One ruling defendant relies upon to prove bias involved whether Paul M. Weltz could be “cross examined” by defendant’s attorney when defendant, herself, had called him as her own witness. A heated exchange about this issue occurred between Attorney Herman and the Referee. (See: Trial Transcript, May 7, 2003, p. 45, 46, 47). At first, the Referee denied the request. Thereafter, however, the Referee modified her ruling, after plaintiff’s counsel questioned Mr. Weltz. At that point she deemed that Mr. Weltz was actually a witness for each side, and by doing so, permitted Attorney Herman to “cross examine” him.Mr. Herman’s original request to cross-examine his own witness was tantamount to a request that Mr. Weltz be treated as a hostile witness. Such a request requires that the applicant make the proper pre-requisite showing. People v. Adams, 231 AD2d 447 (1st dept. 1986); Hill v. Arnold, 226 AD2d 232 (1st dept 1996). Thus, the Referee properly waited for an record to develop before granting defendant’s request to cross examine Mr. Weltz.Another ruling that defendant claims proves bias is the Referee’s refusal to allow defendant to call: a co-worker and her husband, a friend, and another co-worker as rebuttal witnesses. All were expected to testify about events pre-dating the prenuptial agreement, and about the parties’ relationship as a dating couple. Essentially, they would have bolstered defendant’s claim that she was young, vulnerable, and unsophisticated when the agreement was signed. Such testimony would have been cumulative, since defendant and her mother had both testified to that effect on defendant’s direct case. The Referee, therefore, denied her application to call the additional witnesses. The trier of fact has great discretion to limit cumulative testimony. Irizzary v. Velez, 95 AD2d 713 (1st dept. 1983). There is no evidence that the Referee abused her discretion in this case and/or that these rebuttal witnesses would have offered evidence that should have changed the result in this case.The Referee made comments to the effect that: “12 year old memories are not reliable.” Her observations state nothing more than an obvious conclusion that the passage of time affects credibility of testimony. Defendant has not substantiated her claim that Referee’s observation about faded memories was applied in an uneven manner and/or that the ultimate determinations of credibility were based on anything other than what the Referee observed in court.Nor will the court ascribe any bad motive to the Referee for giving the parties a prompt decision. Defendant complains that the Report was rendered several days after the trial concluded. The decision, however, was not made until after all of the testimony was heard and considered by the Referee.6. The legal sufficiency of the prenuptial agreementDefendant argues that the prenuptial agreement is “plainly unfair, unconscionable and the product of plaintiff’s overreaching and fraud.” She further claims that the prenuptial agreement is “certainly unfair and unreasonable under DRL §236B(3).”A duly executed prenuptial agreement is accorded the same presumption of legality as any other contract. Bloomfield v. Bloomfield, 97 NY2d 188 (2001). The spouse seeking to set aside an agreement has the burden of establishing fraud, duress, or other impediment, attributable to the other spouse (e.g. the agreement’s proponent). Matter of Greiff, 92 NY2d 341, at 344 (1998).Defendant has not proved that the prenuptial is the product of fraud, duress, or other impediment, attributable to plaintiff. There is no credible evidence of any falsehoods stated to her by plaintiff. Defendant was aware of plaintiff’s earnings and also aware that he had acquired substantial assets before the parties married. See: See: Sherman v. Eisenberg, 267 AD2d 29 (1st Dept. 1999) ["misrepresentation of a material existing fact, falsity, scienter, deception and injury"]. Though possibly the parties may not have gotten married unless they mutually agreed to a prenuptial agreement, this is not “coercion” or “duress” sufficient to set aside a prenuptial agreement. See: Costanza v. Costanza, 199 AD2d 988 (4th Dept. 1993); Kamenitsky v. Corcoran, 177 AD 605 (1st Dept. 1917). No strong arm tactics were involved. Defendant simply had to make a decision about whether or not to sign the agreement, and she did so. Defendant also considered the terms of the prenuptial agreement over a period of time and had access to legal counsel in connection with its negotiation and execution. Chait v. Chait, 256 AD2d 121 (1st Dept. 1998). The Referee found it incredible that plaintiff felt “overmastered” by plaintiff and dwarfed by the enormity of the commitment she was making and the Referee’s conclusions are supported by this record.This court rejects defendant’s position, that the prenuptial agreement on its face is filled with ambiguous and legally unenforceable provisions. The material terms are clear and enforceable.The court also rejects defendant’s position that she did not have effective assistance of counsel in the negotiation of the agreement. The record supports the Referee’s findings that the defendant met with her attorney twice and spoke to him on the phone approximately 40 times. The prenuptial agreement is the product of negotiations. Moreover, Mr. Weltz advised defendant that the agreement was not a good one for her, but she acted against his advice in deciding to sign the agreement anyway. She cannot now blame counsel for decisions she made against his advice.Whether an agreement as a whole is “unconscionable,” so that it should be set aside is evaluated as of the time the agreement is made, and cannot be made to depend on subsequent experiences and events. Grubman v. Grubman, 191 AD2d 194 (1st dept. 1993). An agreement is “unconscionable” if, on the one hand, no one in his or her right mind or possessed of his or her senses would make such a bargain, and if on the other hand, no honest and fair person would accept such a deal. Christian v. Christian, supra at 71; McCaughey v. McCaughey, 205 A.D.2d 330 (1st Dept. 1994); Lounsbury v. Lounsbury, __AD2d__, 2002 WL 31769708 (3rd dept. 2002). This standard was clearly not met at the time of the making of the prenuptial agreement.DRL §236[B][3] further provides that with respect to the issue of maintenance, or the waiver thereof, the court must also consider whether the agreement is unconscionable “at the time of entry of the final judgment.” No version of events proffered by defendant meet this statutory standard.The court has examined the complete record, including the transcripts, the exhibits and the Report itself. After doing so, the court finds that the prenuptial agreement is not unconscionable. The bargain that plaintiff originally struck does not “shock the conscience and confound the judgment of any (person) of common sense.” Christian v. Christian, supra at 71. This is a sound agreement that was fair and reasonable at the time of its making and it does not contain support provisions that are unconscionable when examined in the overall context of the particular marriage.Although the agreement provides for a waiver of maintenance, this alone does not render an agreement unconscionable. Siclari v. Siclari, 291 AD2d 392 (2nd Dept. 2002) [unfair and unreasonable agreement resulted in unconscionable maintenance waiver]. Even in a very long marriage, the fact that a spouse waived maintenance years ago, but she has never worked outside the home since then, does not automatically render the waiver of maintenance unconscionable. See: Bloomfield v. Bloomfield, supra. [26 year marriage, children, homemaker, no skills, no maintenance]. Parties can always agree to waive maintenance. Such waiver provisions are routinely enforced, unless they render either party a public charge. GOL §5-311.The gravamen of defendant’s motion is that plaintiff is a very rich man and she will leave the marriage not as rich as he is. In evaluating the agreement, the court does not measure how generous it is. Rather, the court examines whether the agreement that the parties have struck is a bargain that “shock[s] the conscience and confound[s] the judgment of any (person) of common sense.” Christian v. Christian, supra. This agreement does not meet that high threshold.The agreement provides for increasing payments, tied in to the length of this marriage. It also requires defendant to buy a place for defendant and the children to live, and to maintain it at his expense during the minority of the children. Thus, once the child support is calculated and a permanent order is in place, the remaining expenses will be largely attributable to defendant’s own support. Defendant is reasonably young, the children are school aged, and she has practical work experience. Though she may feel the impact of being on a budget, she certainly is in no danger of becoming a public charge. GOL §5-311. Moreover, she is capable of self-support.Defendant maintains that the Referee made a legal error by preventing her from presenting evidence of the parties’ current financial circumstances, to show the present inequities in the maintenance provisions of the agreement. Even accepting her claims, that she can establish that plaintiff is substantially wealthier today than he was at the time of the agreement, defendant would still not prevail on showing that this agreement is presently (“at the time of entry”) unconscionable. Defendant does not claim, or contend that she is incapable of self-support and therefore is likely to become a public charge if the agreement is enforced. Valente v. Valente, 269 AD2d 389 (2nd Dept. 2002). She cannot show that she will become a public charge. At most she can show that her standard of living will decrease upon the dissolution of the marriage. Her criticism of the agreement is in hindsight and though she may now regret the deal she made 11 years ago, it is not “unconscionable” simply because of the passage of time, and because she did not work in the intervening years. Bloomfield v. Bloomfield, supra.Even if the court accepts defendant’s position that the Referee should have allowed testimony about present financial circumstances, this is not an error that requires another, or further hearing on current finances. Even accepting the facts about present finances as defendant represents them to be, the agreement is not unconscionable. In this regard the court not only confirms the Referee’s findings about the validity of the prenuptial agreement and makes the further finding that the agreement is not unconscionable even when viewed with the parties’ present circumstances as defendant represents them to be.ConclusionIn accordance herewith the Referee’s report is confirmed in its entirety. This court, based on defendant’s proffer of proof, further finds that the maintenance waiver is not an unconscionable provision even when viewed at this time.This constitutes the decision and order of the court.So Ordered.
