Mase v Di Mase

[*1] Di Mase v Di Mase 2004 NY Slip Op 51063(U) Decided on September 24, 2004 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 24, 2004
Supreme Court, New York County

Sonia Di Mase, Plaintiff,

against

Giovanni Di Mase, Defendant.



350426/03



Kupferman & Kupferman, LLP

By: Stephanie E. Kupferman, Esq.

LM, Esq.

425 Park Avenue, 31st Floor

New York, New York 10022

and

Kent, Beatty & Gordon, LLP

By: Jack A. Gordon, Esq

425 Park Avenue

New York, New York 10022

Attorneys for Plaintiff

Kantor, Davidoff, Wolfe, Mandelker & Kass, P.C.

By: Matthew C. Kesten, Esq.

51 East 42nd Street

New York, New York 10017

Attorneys for Defendant

Judith J. Gische, J.

Plaintiff has served an amended complaint seeking a divorce and other relief. She previously moved for summary judgment on her second cause of action, which seeks to declare that an alleged prenuptial agreement dated November 19, 1979 and a further alleged prenuptial agreement dated December 18, 1979 are both null, void, invalid and unenforceable under Venezuelan law. By decision and order dated March 23, 2004, this court denied the motion for summary judgment. Subsequently, the court bifurcated and separately tried the issues raised in [*2]plaintiff's second cause of action, because the determination of the enforceability of the alleged prenuptial agreements necessarily impacts the issues that may be raised in the related divorce action.

Plaintiff's second cause of action was tried on July 28, 29 and 30, 2004. Plaintiff called herself and Dr. Francisco Lopez-Herrera as witnesses on her case. The defendant called himself, Mario R. Gomez Lopez and Dr. Ram¢n Escovar-Leon, as his witnesses.

Based upon the credible evidence, the court makes the following findings of fact and conclusions of law:

1. Resolution of the Disputed Factual Issues

The parties give differing accounts regarding the execution and registration of a November 1979 document. The document is handwritten in the Spanish language.

Plaintiff claims that, although her signature appears on the document, she was never provided with a full copy to read before she actually signed it. She claims that she did not read or speak Spanish at the time and that the document was never translated to her in English or otherwise explained to her before she signed it either. She admits that the defendant told her that if she signed the document, his father would be happy and they could get married sooner. She also claims that when she signed the truncated document, it was in the parties' apartment and outside the presence of any witnesses. She denies knowing the parties indicated as witnesses on the document at the time it was signed.

In distinction, defendant claims that he explained to the plaintiff that his father wanted the parties to sign a prenuptial agreement before they married. He disputes plaintiff's claim that she neither read nor spoke Spanish when the agreement was actually signed. He further testified that an attorney, Dr. Cesar Naranjo, was retained to draw up the agreement and that he and plaintiff both visited the attorney about the matter. Defendant contends that Dr. Naranjo explained the contents of the agreement to both plaintiff and himself before they executed it.

According to defendant, Dr. Naranjo had the document forwarded to the local clerk for execution and registration. On December 5, 1979 the parties executed the document in the Subordinate Office of the Registrar of the Third Circuit of the Registrar of the Department of Libertador of the Federal District (Republic of Venezuela). It was executed in triplicate. One agreement was executed in the form provided by Dr. Naranjo. The other two copies had been transcribed in the official books of the Office of the Registrar and the parties signed the books. One official book was to be maintained in the Subordinate Office of the Registrar and the other book was to be maintained in a Central State Registrar office. Defendant testified that there were two witnesses who were known to him present at that time, to wit: Enrique Diaz Carretero and Mario Ruben Gomez Lopez. Mario R. Gomez Lopez, called by defendant as a witness, corroborated defendant's version of the events concerning the execution of the November 1979 document.

The court finds that defendant's statements and testimony regarding the circumstances of the signing of the November 1979 document are more credible than plaintiff's version of the events. Plaintiff's memory of the events was quite hazy. Defendant's factual assertions were corroborated not only by Mr. Gomez Lopez, but also by the fact that the actual document in question was located in the registrar's office where it was filed. A copy of the document, certified on August 7, 2003 by the Registrar of the Third Circuit of the Libertador Municipality [*3]of the Capital District, was placed into evidence. The court finds that on December 5, 1979 the parties executed and registered a prenuptial agreement with the Subordinate Office of the Registrar in the Libertador District in Caracas, Venezuela. That document was prepared and dated November 1979.[FN1]

It is undisputed that on December 18, 1979, defendant signed a document before a Notary Public, which purports to give plaintiff certain economic benefits in the event of a divorce between the parties. Neither plaintiff, nor anyone else other than defendant, signed the December 18, 1979 document.

It is also undisputed that the parties were married on January 12, 1980 in the Department Vargas located in the Judicial Circuit of the Federal District and the State of Miranda (Republic of Venezuela). Finally it is undisputed that the parties were married in a different district than the one where the November 1979 prenuptial agreement was filed.

2. Resolution of the Disputed Legal Issues

With respect to the November 1979 agreement, the parties dispute whether it

was registered in accordance with applicable Venezuelan law. Plaintiff contends that the agreement was not registered, as it was supposed to be, in the district where the parties were married. She argues that in the absence of registration in the appropriate office, the agreement is a nullity. Defendant argues that the agreement did not have to

be filed in the department where the parties were married.

On this particular issue, the court had the benefit and pleasure of listening to each parties' expert witness. Both witnesses are law professors, legal scholars and practicing lawyers in Venezuela. The court was impressed by the considered and thought provoking testimony of each witness and appreciated learning about the Venezuelan legal system. While each expert reached different conclusions regarding the application of Venezuelan Civil Law to the facts of this particular case, they agreed, in general, on most aspects of the applicable law.

Both Dr. Lopez-Herrera and Dr. Escovar Leon agree that Article 143 of the Civil Code of Venezuela is the applicable statute which governs prenuptial agreements and that it requires that such agreements be registered. They also agree that this court should apply the Civil Code as it existed in 1979, when the subject prenuptial agreement was actually executed. They agree that failure to fulfill the registration requirements of the statute will render a prenuptial agreement a nullity. They also agree that such agreements must be signed before the parties actually marry in order to be enforceable. They agree that to be valid, prenuptial agreements must be signed either in front of the Public Registrar or a Judge or a Notary Public. They further agree that if the agreement is signed before a Judge or a Notary Public, it must be registered in the office of the registrar in the district where the parties are to be married.

The only departure in the opinions of Dr. Lopez-Herrera and Dr. Escovar Leon is where a prenuptial agreement must be registered if it is actually signed before the Registrar. Dr. Lopez-Herrera contends that such an agreement must still be registered in the district in which the parties actually marry. Dr. Escovar Leon contends that pre-nuptial agreements actually signed [*4]before the Registrar may be filed in any office of a subordinate registrar. Since the November 1979 agreement in this case was signed before the registrar, but not in the office where the marriage ceremony was performed, each expert reaches a different conclusion regarding whether the prenuptial agreement at bar is enforceable.

Dr. Escovar Leon opines that a plain reading of the applicable statute calls for a distinction between documents signed before a registrar as opposed to a Judge or Notary Public. He applies what would be analogous to a plain English interpretation of the statute by directing the court to the plain meaning of the Spanish language employed. He relies upon the fact that in the applicable code provision the treatment of the documents actually signed before the registrar is discussed on one side of a colon while the treatment of documents signed outside of the registrar's office are discussed on the other side. He believes that there is no reason to look at other authorities given the clarity of the statutory language.

Dr. Lopez-Herrera takes the position that the applicable code provision is not as clear as Dr. Escovar Leon claims. He opines that the statute must be read in connection with the purpose of the law.

According to Dr. Lopez-Herrera there were two reasons why Venezuelan lawmakers originally required the public filing of a prenuptial agreement. One reason was to protect the parties to the agreement. But just as important, Dr. Lopez-Herrera claims that, the law was intended to protect third parties, mostly creditors. In the absence of a prenuptial agreement, Venezuelan law is a community property regime. Accordingly, the debts of one spouse may be satisfied with the property of the other spouse. A prenuptial agreement which specifies that certain property is the sole property of one spouse removes that separate property from the reach of a creditor of the other spouse. Thus the filing of such agreement serves as actual notice to creditors that they cannot reach the property of one spouse to satisfy the debts of the other.

Drawing upon this reason for the law, Lopez-Herrera opines that a specific location for the actual filing of a prenuptial agreement is critical information to a third party interested in whether the married parties have deviated from the community property regime. He further opines that it would be unfair to have a third party examine the records of 200 public registrars offices to evaluate what his or her rights may be to satisfy a debt against a spouse's property. It is primarily for this reason that Dr. Lopez-Herrera claims that the lawmakers intended to designate a specific registrar's office for the filing of a prenuptial agreement, regardless of whether it was signed in before the public registrar or outside of the registrar's office, before another authorized public official.

Dr. Escovar Leon maintains that the burden on a third party to search the Public Registrar's Office would not be as onerous as Dr. Lopez-Herrera contends because registration is also done in a central district office. Thus, any third party would only have to search 50 central offices across the state.

Both experts agree that in the Venezuelan legal system, decisions in court cases are not generally looked to as binding precedent.[FN2] They may, however, be considered persuasive authority. Legal opinions and writings of scholars are relied upon and given great weight in interpreting law. Likewise, however, legal commentary does not bind the court to decide a case [*5]in a particular manner.

There are only two reported Venezuelan cases that specifically deal with this issue. One case supports Dr. Escovar Leon's position and the other case supports Dr. Lopez-Herrera's position. The cases are both by the intermediate Appellate Courts in the Venezuelan legal system. The court rejects Dr. Escovar Leon's argument that the case supporting his position should be given more weight than the decision supporting Dr. Lopez-Herrera. Dr. Escovar Leon finds it significant that the decision supporting his position was further appealed and reversed on other grounds. He claims that because the highest Appellate Court could have, but did not, consider the direct issue relevant here, the final Appellate Court decision in fact supports his legal opinion. Because the court decisions are not binding, however, this court does not draw any conclusion from the Appellate Court's silence, other than that it was silent on the issue.

Dr. Lopez-Herrera also relies on certain commentary and legal texts to support his position. Dr. Escovar Leon rejects the commentary as either not being made by somebody who is considered an authority or, in some cases, because the authoritative text was based upon Dr. Lopez-Herrera's original opinion.

It is significant to the court that Dr. Lopez-Herrera formed his opinion regarding the interpretation of this statute well before plaintiff commenced this action. Dr. Lopez-Herrera has published commentary consistent with the opinions he expressed in this case, dated many years before this case was filed. It is true that subsequent commentaries dealing with this subject rely on Dr. Lopez-Herrera's originally expressed opinion, but this does not undercut the independent consideration these later authorities gave to the issue.

Dr. Escovar Leon's further point that some of the commentaries were not made by legal scholars but by persons who would otherwise be considered practitioners, does not undermine their conclusions. At most, it goes to the issue of the weight to be given to each of the opinions.

After a full consideration of each expert's opinion and the existing authorities, the court concludes that under the applicable Venezuelan statute, the parties were required to have filed their particular prenuptial agreement before a registrar in the same district in which they were married. The fact that they signed the prenuptial agreement before a public registrar in a district other than where they were married compels a conclusion that the prenuptial agreement is null, void, invalid, and of no effect. The court finds that any other interpretation would be inconsistent with the intent of the statute. There is simply no logical or legal basis for the Venezuelan lawmakers to have distinguished between those circumstances when a prenuptial agreement is signed before a public registrar or some other authorized official.

Although the experts reach different conclusions about the November 1979 prenuptial agreement, they are in complete accord that under Venezuelan law the December 18, 1979 document is not a prenuptial agreement at all. The December 18, 1979 document fails as a prenuptial agreement principally because it is signed by only one of the parties. The court, therefore, declares that the December 18, 1979 document is not an enforceable prenuptial agreement.

In accordance with the aforementioned decision, this court finds that plaintiff is entitled to a judgment on her second cause of action declaring that the November 29, 1979 prenuptial agreement and the December 18, 1979 document are null, void, invalid and unenforceable. The [*6]second cause of action is hereby severed and the plaintiff is directed to settle a judgment thereon. Counsel and the parties are hereby directed to appear in court on October 19, 2004 at 9:30 a.m. for a conference. During the conference the attorneys will be expected to particularize what issues are in dispute in the divorce action in view of the instant decision. The attorneys will also be expected to discuss and schedule discovery and related issues.

This constitutes the trial decision of the court.

Dated: New York, New York

September 24, 2004

SO ORDERED:

________________________

J.G. J.S.C. Footnotes

Footnote 1: The court finds of no consequence that certain copies of the document bear different dates from each other. There was apparently a time lag between preparation and execution, which accounts for the difference.

Footnote 2: There are some exceptions that are not applicable here.