Matter of Cassini

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[*1] Matter of Cassini 2009 NY Slip Op 52491(U) [25 Misc 3d 1239(A)] Decided on December 4, 2009 Sur Ct, Nassau County Riordan, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2009
Sur Ct, Nassau County

In the Matter of the Application of Christina Cassini under the Will of Oleg Cassini to Determine the Validity and Enforceability of her Verified Claim.


Donlon & Harold, P.C.

350 Old Country Road, Suite 101

Garden City, New York 11530

(for Richard Rowe as Guardian of Daria Cassini)

Putney Twombly Hall & Hirson

521 Fifth Avenue

New York, NY 10175

(for Marianne Nestor Cassini as Executor and beneficiary)

Busell & Stier

98 Cutter Mill Road, Sutie 395 N

Great Neck, NY 11021

(for petitioner Christina Cassini)

John B. Riordan, J.

This is a proceeding to determine the validity of a claim. The executor moved to dismiss the claim and the court determined that the motion would be treated as a motion for summary judgment (Dec. No. 525, dated July 16, 2009). The claimant made a cross-motion for summary judgment granting her claim.

The decedent, Oleg Cassini, died on March 17, 2006. He was survived by his spouse Marianne Nestor Cassini and two children from a prior marriage to Gene Tierney, Christina Cassini Granata Belmont and Daria Cassini. Daria Cassini is an incapacitated person for whom a guardian was appointed in the State of New Jersey. The New Jersey guardian was appointed ancillary guardian for Daria Cassini by this court (see Dec. No. 657 dated August 19,2009).

The decedent's will dated November 3, 1992 was admitted to probate by this court on August 15, 2007 and letters testamentary were issued to Marianne Nestor Cassini. The decedent's will devised all of his real property to his wife. Article Sixth of the decedent's will established a trust for the benefit of Daria Cassini to be funded with $500,000 with the trustees [*2]to pay all of the net income to Daria. The trustees have the discretion to pay principal for the benefit of Daria. Upon Daria's death, the balance of the trust is payable to Christina Cassini or her issue. Article Seventh of the decedent's will provides for the payment of one million dollars to Christina Cassini and one million dollars to the decedent's brother, Igor Cassini. The balance of the estate is left to Marianne Cassini.

In May of 2007, Christina Cassini filed a verified claim and demanded payment of twenty-five percent of the decedent's net estate. The claim was subsequently amended. The basis for her claim was a property settlement agreement entered into by the decedent and Gene Tierney which was incorporated into an interlocutory judgment of divorce in California in 1952 and referenced in a final judgment of divorce dated April 7, 1953. The property settlement agreement, which is dated January 20, 1952, provides in paragraph seventeen,

the following:

Husband agrees that he will by testamentary disposition

leave not less than one-half of his net estate, after payment

of debts and taxes, to Daria and Christina, in equal


The claimant argues that paragraph seventeen became part of a final judgment that must be honored or, in the alternative, is part of a fully executed contract that must be enforced.

The property settlement agreement provided in pertinent part for the support and custodial care of the decedent's two children with Daria's share to be held in trust for her lifetime. Each party waived the right to any and all claims they had against each other for alimony and support (paragraph 6); the decedent agreed to repay loans made to him by his wife (paragraph 10); each party released the other party and his or her heirs and assigns (paragraph 12); the property of the parties under each others possession or control was to remain separate (paragraph 13); the decedent was to maintain life insurance policies for the benefit of Christina and Daria (paragraph 16); the agreement was to be construed in accordance with the laws of California (paragraph 19); and the agreement could not be altered, amended or modified except by written instrument executed by the parties (paragraph 20).

On or about February 28, 1952, the matter was heard before Judge Mosk, a Judge of the Superior Court of the State of California, and the action was "tried"[FN1] upon plaintiff's complaint and defendants's answer thereto and after the Court considered the evidence and the arguments of counsel it was ordered and adjudged that Gene Tierney was entitled to a divorce from Oleg Cassini. The interlocutory judgment provided that upon the expiration of one year after the entry [*3]of the interlocutory judgment, a final judgment dissolving the marriage was to be granted. The interlocutory judgment further provided that the property settlement agreement "which has been introduced in evidence, be and the same is hereby approved and hereinbelow incorporated herein and made a part of this judgment, and the plaintiff and defendant each respectively are ordered to carry out, fulfill and perform the respective obligations assumed and agreements made by each of them respectively thereunder."

Thereafter, on April 7, 1953, a final judgment of divorce was entered by the Superior Court of the State of California and provided the following: "[i]t is further ordered and adjudged that wherein said interlocutory judgment makes any provision for alimony or the custody and support of children, said provision be and the same is hereby made binding on the parties affected thereby the same as if herein set forth in full, and that wherein said interlocutory judgment relates to the property of the parties hereto, said property be and the same is hereby assigned in accordance with the terms thereof to the parties therein declared to be entitled thereto...".

After Christina Cassini filed her claim, Marianne Nestor Cassini moved to dismiss the claim on the following grounds: the property agreement merged into the interlocutory judgment and can no longer be enforced as a separate agreement; paragraph seventeen of the property settlement agreement was dropped from the final agreement; the paragraph is unenforceable because it is beyond the power of the court; and even if the property settlement agreement had not merged into the judgment it is unenforceable because of lack of consideration, it is a mere expectancy and it violates public policy.

The first question that must be addressed is whether the property settlement agreement which was incorporated into the interlocutory judgment merged with the final judgment. This question is to be determined pursuant to the laws of the State of California. "Merger is the substitution of rights and duties under the judgment or the decree for those under the agreement or cause of action sued on" (Flynn v Flynn, 42 Cal2d 55, 58 [1954]). Whether an agreement is merged into the final decree dictates the remedies available such as "whether or not contempt will lie to enforce the agreement, whether or not judgment remedies, such as execution or a suit on the judgment, are available, whether or not an action may still be maintained on the agreement itself, and whether or not there is an order of the court that may be modified..." (id.). If the underlying agreement merged into the final judgment, it is entitled to full faith and credit pursuant to Article IV §1 of the Constitution of the United States unless it is unenforceable under a limited exception, which will be discussed in full below.

The Supreme Court of the State of California in Flynn v Flynn (42 Cal2d 55 [1954]) set forth guidelines to determine whether a property settlement agreement merged into a final judgment of divorce. In Flynn, the parties entered into a separation agreement and the agreement was to be made a part of and incorporated into a decree and the parties were ordered to comply with the provisions thereof. The interlocutory decree ratified the property settlement agreement, but did not set forth the agreement in the body of the decree. The agreement, however, was specifically incorporated in the interlocutory decree and the parties were ordered to comply with the terms of the agreement. The final judgment incorporated the interlocutory decree by reference. The court found in Flynn that where the agreement is expressly set out in the decree and the court orders it to be performed, a merger is intended and where a merger is intended the "purpose of the incorporation is, of course, to make the agreement an operative part of the decree" (Flynn v Flynn, 42 Cal2d 55, 58 [1954]). [*4]

In the instant proceeding, the interlocutory judgment of divorce specifically incorporated the property settlement agreement and ordered the parties to comply with the terms. The final judgment of divorce, in turn, referred to the interlocutory decree as well. The final judgment of divorce did not provide that only certain provisions of the interlocutory judgment would prevail; the interlocutory judgment merged in its entirety. The arguments that only certain provisions of the property settlement agreement survived the final judgment or that as a result of the merger the property settlement agreement cannot be enforced are without merit. Accordingly, the court finds that the property settlement agreement merged with the final judgment of divorce.

Once a judgment is rendered in California, it becomes final and can only be attacked in four ways: motion for a new trial; right of appeal; motion for relief pursuant to the Code of Civil Procedure; or an independent suit in equity (Adamson v Adamson, 209 Cal App2d 492 [1962]). Both Oleg Cassini and Gene Tierney appeared in the proceeding to end their marriage. Both parties were represented by counsel and participated in the hearing through their attorneys.Neither Oleg Cassini nor Gene Tierney appealed the final judgment of divorce. The parties never moved for a new trial and they did not move to modify the judgment. The judgment was final in California. Only now, fifty-seven years later, have objections been raised to the validity of one paragraph of the property settlement agreement.

As set forth previously, once the court makes a determination that the property settlement agreement merged into the final judgment, the judgment is entitled to full faith and credit unless it is unenforceable under a limited exception. Article IV §1 of the Constitution of the United States requires that the public records and judicial proceedings of each state shall be given full faith and credit in every other state. A judgment of a state court should have the same credit, validity and effect in every other court of the United States, which it had in the state where it was procured (Underwriters Natl. Assur. Co. v North Carolina Life & Acc. & Health Ins. Guar. Assn., 455 US 691 [1982]). The purpose of the full faith and credit clause is for the "transforming an aggregation of independent, sovereign States" and "[i]f in its application local policy must at times be required to give way, such is part of the price of our federal system'" (Sherrer v Sherrer, 334 US 343, 354-355 [1948] quoting in part Williams v North Carolina, 317 US 287, 302 [1942]).

With regard to matrimonial proceedings, the Supreme Court has found that "[t]he vital interests...involved in divorce litigation indicates to us that it is a matter of greater rather than lesser importance that there should be a place to end such litigation" (Sherrer v Sherrer, 334 US 343, 356 [1948]). The court further found that "the obligation of full faith and credit requires that such litigation should end in the courts of the State in which the judgment was rendered" (id.).

A judgment of another state must be given full faith and credit provided the first state had jurisdiction over the parties and the subject matter (Nevada v Hall, 440 US 410, 421 [1979]). The limitations have been aptly described as "courts only have the power to issue binding judgments in cases where they have jurisdiction. That means if the controversy is not one that the court is authorized to resolve, the judgment binds no one... This also means a court's judgments bind only parties who are properly before the court" (Baude, The Judgment Power, 96 Geo LJ 1807, 1810 [2008] ). The California court had both personal jurisdiction and subject matter jurisdiction so the final judgment cannot be attacked on these grounds.

There are limitations, however, and full faith and credit may not be extended to another state's judgment where the judgment is in contravention of its own statutes or policy (Pacific [*5]Employers Insurance Co. v Industrial Accident Comm'n (306 US 493, 502 [1939]).

Public policy was not violated in New York as a contract to make a will may be enforced in New York after the death of the promisor (Vetzigian v Tutujian, 299 NY 315 [1949]). The same result has been reached by the courts in California (see Morrison v Land, 169 Cal 580, 584 [1915] "There is no dissent in the authorities from the proposition that one may make a valid contract with another to devise or bequeath property by his last will in a certain specified way").Further, the final judgment in question was not in violation of any statutes of either state.

The executor's remaining arguments can be summed up as follows: the court was without the authority to compel the decedent to make a testamentary disposition[FN2] and the court was without the power to order the division of separate property. Neither of these arguments can withstand scrutiny. Whether the court in California was without the power to compel the testamentary disposition was a question that should have been addressed by the courts of California. Neither Oleg Cassini nor Gene Tierney took any steps to modify, vacate or appeal the final judgment. As such, the judgment became final and is accordingly entitled to full faith and credit. Moreover, even if the court in California made an error or misapprehended the law, a misapprehension of the law in the forum state is not grounds to disregard the judgment of another state (Fauntleroy v Lum, 210 US 230 [1908]). Furthermore, the law of California does not proscribe agreements to make testamentary dispositions, it merely requires the death of the promisor prior to enforcement (Matter of Edwards, 45 Cal App4th 456 [1995]).

Finally, even if the court were to find that the underlying property settlement agreement did not merge with the final judgment, the outcome would not be any different. The parties entered into a fully integrated contract where exchanges were made regarding the support and custody of the parties' children (see Dexter v Dexter, 42 Cal2d 36 [1954]). Oleg Cassini and Gene Tierney waived the right to alimony and the right to divide property (other than the agreement that the decedent devise one-half of his net estate to his children). The decedent benefitted from the terms of the agreement and only now, fifty-seven years later, is his legal representative trying to abrogate the same.

The executor's other arguments are without merit.

For all of the reasons set forth herein, the motion to dismiss is denied. Claimant's cross-motion for summary judgment is granted.

This constitutes the decision and order of the court.

Dated: December 4, 2009 [*6]


Judge of the

Surrogate's Court Footnotes

Footnote 1:Although the interlocutory judgment of divorce sets forth that the action was tried, the matter was apparently uncontested and resolved when the parties entered into the property settlement agreement. At the time the decedent and Gene Tierney were divorced, California provided for a two-stage procedure for dissolving a marriage. Before the parties could obtain a final judgment of divorce, the court entered an interlocutory judgment of divorce which "settled the rights and duties of the parties with regard to each other" (4-122 California Family Law Prac & Proc §122.02 [2d ed]). After the expiration of one year from the date of entry of the interlocutory judgment, a final judgment of divorce would issue. The primary purpose of the waiting period was to allow the parties the opportunity for "reflection and reconciliation" before the final judgment of divorce (id.).

Footnote 2:The executor relies on a case by the court in the fifth appellate division, Mitchell v Marklund, 238 Cal App2d 398 [1965] which was decided thirteen years after the final judgment in the instant proceeding. The Mitchell decision was the first decision by a court in California which addressed the issue of whether a judgment could include a provision wherein one of the parties agreed to make a testamentary disposition. The court found that one spouse had repudiated the contract which released the other spouse. Such is not the case in the instant proceeding. The court in Mitchell stated that the divorce court lacked the power to order one of the parties to make a will disposing of his separate property (Mitchell v Marklund, 238 Cal App2d, 398, 404 [1965]). This argument, however, does not provide the litigant in this proceeding with grounds to attack the judgment.

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