Caramante v. Caramante

Judgment unanimously affirmed without costs. Memorandum: On appeal, plaintiff challenges those portions of a divorce decree that found that there is a valid separation agreement between the parties, declined to award plaintiff any portion of defendant’s pension, refused to award her maintenance of more than $300 per month, and refused to award her counsel fees of more than $1,200. On his cross appeal, defendant challenges those 1017 portions of the decree that awarded plaintiff maintenance and counsel fees in any amount. Based upon our review of the testimony and documentary evidence, we agree with the court’s determination that there is a valid separation agreement. Because the agreement by its terms resolved the economic issues and because there is no challenge to the fairness of the agreement when entered into, the agreement precludes any property distribution contrary to its provisions (see, Domestic Relations Law § 236 [B] [3]; Christian v Christian, 42 NY2d 63). Moreover, where the parties have fully settled their respective rights in the marital property by executing a separation agreement prior to the effective date of the equitable distribution statute, the marital property is not subject to equitable distribution (De Jose v De Jose, 104 AD2d 629, 630, affd 66 NY2d 804). Therefore, the separation agreement precludes any claim by plaintiff to part of defendant’s pension rights (De Jose v De Jose, supra). The court properly awarded plaintiff maintenance of $300 per month. In entering into the separation agreement, plaintiff did not waive her claim for support. On the contrary, defendant agreed to pay $60 per week as support for both plaintiff and the children. In any event, plaintiff is entitled to maintenance in the amount required to satisfy her basic needs based upon her showing that she is unable to be self-supporting and is in danger of becoming a public charge (McMains v McMains, 15 NY2d 283, 284-285). Finally, we affirm the award of attorney’s fees to plaintiff in the amount of $1,200. (Appeals from Judgment of Supreme Court, Monroe County, Maas, J.H.O.—Divorce.) Present—Den-man, J. P., Green, Balio, Lowery and Davis, JJ.