M v F

[*1] M v F 2010 NY Slip Op 50563(U) [27 Misc 3d 1205(A)] Decided on March 23, 2010 Supreme Court, New York County Gesmer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2010
Supreme Court, New York County

M, Plaintiff,

against

F, Defendant.



350065/09



Attorney for plaintiff: Sharon Stein, Stein & Ott, LLP, New York, New York

Attorney for defendant: Jad Greifer, Clair, Greifer LLP, New York, New York

Ellen Gesmer, J.

Defendant F (Father) moves to dismiss the Complaint of plaintiff M (Mother) for failure to state a cause of action, pursuant to CPLR §3211(a)(7), and based upon a defense based on documentary evidence, pursuant to CPLR §3211(a)(1). The Mother opposes the Father's motion.

FACTS

The Mother is 40 years old. She emigrated to the United States from her native Sweden in or about the early 1990's. The Father is approximately 50 years old and was born in France. He is the creative director and founder of the advertising and branding agency, F & F. In or about 1993, the Mother was hired to work at F & F as a graphic designer. In or about 1994, the parties became romantically involved. They lived together for approximately 13 years between 1994 and 2007, and have a child together, E, born on December 7, 1999. They have never been married to each other.

The Mother's Complaint states that, in 1994, when she first started to work at F & F, the company had three employees in addition to the Father. Today, it has 35 employees and gross revenues of approximately $20,000,000. Between 1992 and 1994, the Father was the creative director at Harper's Bazaar, and, according to the Complaint, he spent the majority of his time at the Harper's offices during those years, stopping by F & F some afternoons, and some days not at all. The parties would often work together on F & F related projects after hours.

On or about November 13, 1997, the Father purchased a loft apartment on Mercer Street in Manhattan (the Apartment) in his sole name for $1,495,000. At that time, the Mother's gross annual salary at F & F was approximately $100,000 and the Father's was approximately $1,000,000. During the next two years, renovations were made. The Complaint states that, during the renovations, both parties reviewed drawings, met with the architect and contractors, and reviewed materials and appliances. The parties moved into the Apartment in or about November 1999. Their daughter was born the following month. The Mother's Complaint states [*2]that the Father told the Mother that the Apartment was their family's home, and that he would make a will leaving the Apartment to her in the event of his death.

The Complaint states that, in or about 1999, the parties looked for land to purchase on which to build a vacation home. That year, the Father purchased in his sole name vacant land in Amagansett, New York (the Land) for $1,275,000. At that time, the Mother's gross annual salary at F & F was approximately $165,000, and the Father's was approximately $1,000,000. The Mother's Complaint states that the Father promised her that the Land would be a place where the parties and other employees of F & F would work, and where the Mother's family from Sweden and the Father's family from France could visit in the summers and spend time with the parties' daughter and the Father's two children from prior relationships. Over the next approximately seven years, both parties worked on designing a house to be built on the Land, meeting with the architect and contractors and making drawings on their computers. However, no house was ever built.

The Mother's Complaint states that, during the years the parties resided together, the Father referred to the Apartment, the Land, and F & F as "theirs," and referred to the Mother as his "business partner." The Complaint further states that the Father said to the Mother at various times throughout their relationship: (1) that all of their work "was for us and for our future;" (2) that they would combine their efforts and earnings and "work as a team," "work for our future," and "build for our future;" (3) "what's mine is yours, what's yours is mine, it doesn't make a difference;" (4) "I will always take care of you;"and (5) "everything that we put in, we will enjoy together, we're working so hard for our family." The Complaint additionally alleges that, in or about 2001, the Mother agreed to have an abortion when she became pregnant a second time by the Father, after the Father said to her, "If you don't have the baby I will always be there for you and will always take care of you."

The Mother's Complaint states that, in reliance on the Father's statements to her, she made transfers to him of her "labor, services, effort and energy," specifically in creating and maintaining a home for the parties, their daughter, and the Father's two children from prior relationships, caring for Eva and her half-siblings, and contributing her "creative ideas and other intellectual property relating to [the Father's] artwork, photographs, films, writings and other projects."

In or about September 2007, the parties' romantic relationship ended. The Complaint alleges that the Father told the Mother at that time that he would treat their separation as if the parties "had been legally married." However, the Complaint continues, he later refused to share any portion of property owned in his sole name with her, telling her that the property was entirely his. Specifically, the Mother seeks, and the Father refuses to give her, a portion of the value of (1) the Apartment, (2) the Land, and (3) "an equitable net portion of three years of annual net profits" from F & F (Summons with Notice, at 2, Par. A[3]). In her affidavit, she states that "my request for a Constructive Trust related to the business is really a request for a 3 year severance package while I take some time off to be with my daughter, and then to look for a new job" (Pl [*3]Aff, at Par 43).

ANALYSIS

Motions to Dismiss

On a motion to dismiss, the court must treat the facts alleged in the complaint as true, give the plaintiff the benefit of every reasonable favorable inference flowing from those facts, and determine whether the facts fit within any recognized legal theory (Sanders v Winship, 57 NY2d 391 [1982]; Morone v Morone, 50 NY2d 481 [1980]). On a motion to dismiss for failure to state a cause of action, the court may consider supplementary facts set forth in plaintiff's affidavit in determining whether she has a cause of action (Rovello v Orofino Realty Co., 40 NY2d 633 [1976]).

The Mother's Cause of Action for Constructive Trust

Constructive trust is an equitable remedy that permits courts to intervene where the title holder of property " may not in good conscience retain the beneficial interest'" (Sharp v Kosmalski, 40 NY2d 119, 121 [1976], quoting Beatty v Guggenheim Exploration Co., 225 NY 380, 386 [1919]). Generally, a court may only impose a constructive trust when four elements are present: (1) a confidential or fiduciary relationship; (2) a promise; (3) a transfer made in reliance on the promise; and (4) unjust enrichment (Bankers Sec. Life Ins. Soc. v Shakerdge, 49 NY2d 939, 940 [1980]; Sharp v Kosmalski,40 NY2d 119 [1976]; Watson v Pascal, 65 AD3d 1333 [2d Dept 2009]). There is no doubt that the parties had a confidential relationship (Sharp v Kosmalski, 40 NY2d 119 [1976]). However, as discussed below, the facts in the Complaint, even when supplemented by the additional facts set forth in the Mother's affidavit, fail to make out the other three elements required for a prima facie showing of a cause of action for constructive trust.

The Mother argues that the Father's statements to her during their relationship to the effect that he would "take care of" her and "be there for" her, and "what's mine is yours, what's yours is mine," taken together, constitute a promise to share with her the assets accumulated in his name during the time they were together. However, the Court of Appeals has held that general remarks of this kind, while they may in some circumstances create a moral obligation, are insufficient to fulfill the promissory requirement for a constructive trust (Bankers Sec. Life Ins. Soc., supra , at 940; see also Dombrowski v Somers, 41 NY2d 858 [1977] [promise to "take care of" plaintiff too indefinite to form a meaningful promise or a binding oral contract]). The Mother's affidavit in opposition to the motion to dismiss does nothing to supplement the missing element of a promise in her Complaint. Indeed, she admits in her affidavit that the Father "never specifically promised me an ownership interest or a percentage interest in the assets he was acquiring while we cohabited."

The Mother claims that she "transferred" her time and efforts by putting in long hours at [*4]F & F, by helping to renovate and decorate the Apartment, by helping to create a plan for a vacation house that was never built on the Land, and in caring for the parties' daughter and her half-siblings. However, the Mother has not cited to any cases, and the court has not located any, in which an expenditure of time and energy, without more, was held to constitute a transfer sufficient to trigger the constructive trust doctrine. Rather, the cases require a transfer of funds or other valuable property, either alone or in addition to time and effort, in reliance on a promise made by defendant (see, e.g., Sharp v Kosmalski, 40 NY2d 119 [1976]; Lester v Zimmer, 147 AD2d 340 [3d Dept 1989]; Williams v Lynch, 245 AD2d 715 [3d Dept 1997]; Gottlieb v Gottlieb, 166 AD2d 413 [2d Dept 1990]; Tompkins v Jackson, 22 Misc 3d 1128[A], * 7 [Sup Ct NY Co 2009]; Minieri v Knittel, 188 Misc 2d 298 [Sup Ct NY Co 2001]). The Mother's work for F & F was compensated by her salary (set forth in the W2 forms attached as Exhibit D to the Father's moving papers — the documentary evidence upon which he relies pursuant to CPLR §3211[a][1]).[FN1] To the extent that the Mother participated with the Father in coming up with ideas for a vacation home and in seeing the renovation of the Apartment through to its end, no house was ever built on the Land, and she does not claim that she contributed any funds to the purchase of the land or the purchase and renovation of the Apartment. Her contribution of funds for household items such as linens and kitchenware, referred to in her affidavit, may entitle her to ownership of those items, but certainly do not constitute a transfer for the purposes of a constructive trust. Her payment of restaurant and lodging bills when the parties were on vacation, and for costs related to the care of the parties' daughter when they resided together, described in her affidavit, also do not fulfill the transfer element of a cause of action for constructive trust, as they were made not in reliance on a promise, but as a result of their sharing a home and responsibilities as parents of the same child (Sylvester v Sbarra, 268 AD2d 424 [2d Dept 2000]). Consequently, she has failed to establish the required element of a transfer.

Finally, the Mother has also failed to show unjust enrichment. Unjust enrichment, for the purposes of a constructive trust, results when a person acquires property by abusing the trust inherent in a confidential relationship. There is no allegation that the Father acquired title to the Apartment, the Land, or his business by such means. Since, as discussed above, the Mother did not transfer funds or other valuable property, other than her work for F & F, for which she was compensated, there is no unjust enrichment for the purposes of imposition of a constructive trust.

The court is not entirely unsympathetic to the circumstances described by the Mother. As she rather poignantly puts it: What is unfair' is that I had trusted Defendant and never appreciated how vulnerable I was by not asking Defendant to marry me. However, I believed Defendant who repeatedly said I was just like a wife to him....[*5]Defendant told me that marriage was not important and you have nothing to worry about, I will always take care of you...We are working for our future.'

(Mother's Affidavit at Par 7-8). Partly as a result of her admittedly naive belief that a legal marriage would make no difference to her economic rights in the event of the Father's death or the end of the parties' relationship, she may have worked harder and/or for a longer period of time than she might otherwise have done as an employee at F & F, and she also provided childcare and made other contributions to the parties' home and family life, which permitted the Father to travel extensively for work and to take on work outside of F & F that ultimately promoted F & F's image and position in the fashion industry. However, her belief does not transform the Father's statements to her over the years into an enforceable promise to provide her with the same economic benefits that she would have been entitled to if they had been married. Indeed, even if he had made an explicit promise that, upon separation, she would be entitled to equitable distribution' of their assets, it would be unenforceable, as it would be contrary to the long-standing law and policy in New York that unmarried partners are not entitled to the same property and financial rights upon termination of the relationship as married people [Morone v Morone, 50 NY2d 481 [1980]). Statements such as the Father's to the Mother here, that she was "like a wife" to him, and "what's mine is yours" essentially place the Mother in a similar situation to married women in New York prior to the enactment of equitable distribution in 1980, when some attempted, unsuccessfully, to use the constructive trust doctrine to obtain what the legislature later determined they were entitled to when it enacted the Domestic Relations Law (see, e.g., Saff v Saff, 61 AD2d 452, 456 [4th Dept 1978] [finding that the husband's nearly identical statements to the wife "undoubtedly reflected the emotions of a happier time but they most assuredly did not constitute a promise" for the purposes of imposition of a constructive trust as to property owned in the husband's separate name]; Vassel v Vassel, 40 AD2d 713 [2d Dept 1972] [holding that representations that properties were jointly owned, when in fact they were owned by the husband alone, do not constitute a promise within the constructive trust doctrine]). Unless and until the law imposes equitable distribution on unmarried couples, in New York, at least, the legal status of marriage remains vitally important to establishing the economic rights of members of a couple.

The Mother's Causes of Action for Joint Custody and an Award of Child Support

The Father does not argue that the Mother's Complaint fails to state claims for a determination of child custody (the Complaint's second cause of action) and child support (the third cause of action). Rather, he argues that the Supreme Court does not have jurisdiction over these claims because the parties were never married. For the reasons discussed below, that is wrong, as a matter of both law and policy.

The New York State Constitution provides that "[t]he Supreme Court shall have general original jurisdiction in law and equity..." (NY Const, Art 6 §7[a]). This amendment, made in 1962, expanded the jurisdiction of the Supreme Court (Kagen v Kagen, 21 NY2d 532 [1968]; Seitz v Drogheo, 21 NY2d 181 [1967]). Although Fam Ct Act §114 provides that cases over [*6]which the Family Court has "exclusive original jurisdiction" must be originated there, it also states that "the provisions of this act shall in no way limit or impair the jurisdiction of the supreme court as set forth in section seven of article six of the constitution of the state of New York". Cases over which it has "exclusive original jurisdiction" include support proceedings pursuant to Article 4 of the Family Court Act (FCA §411), and proceedings for abuse and neglect under Article 10 of the Family Court Act (FCA §1013; see also Paul B.S. v Pamel J.S., 70 NY2d 739 [1987]; George A. v Ivett A., 14 Misc 3d 622 [Sup Ct Bx Co 2006]). Consistent with the grant of concurrent jurisdiction by FCA §114, custody and child support matters between unmarried parents are frequently adjudicated in Supreme Court (see generally Harari v Davis, 59 AD3d 182 [1st Dept 2009]; Allen v Farrow, 197 AD2d 327 [1st Dept 1994]; Artache v Goldin, 133 AD2d 596 [2d Dept 1987]; Bliss v Ach, 86 AD2d 575 [1st Dep't 1982], aff'd, 56 NY2d 995[1982]; Brentrup v Culkin, 167 Misc 2d 211 [Sup Ct NY Co 1996]).

Thus, there is no question that Supreme Court may exercise jurisdiction over custody and child support as between unmarried parents. The only question is whether it should do so in this case. Here, the Mother has filed in Supreme Court, and the parties have appeared before me for three court appearances and are scheduled for a fourth. If I were to decline jurisdiction, it would extend the amount of time that the parties and their child would have to wait for the issues of custody and child support to be resolved, and it would waste judicial resources, as the Mother would have to re-file in Family Court, where the support and custody matters would then be assigned to a support magistrate and a Judge sitting in a custody and visitation part, respectively. This would be contrary to the "one family-one judge" philosophy repeatedly advocated by former Chief Judge Kaye (see, e.g. The State of the Judiciary 2002 at 7, available at www.courts.state.ny.us./ctapps/StofJud2002.pdf; see also Hartofilis & McAdoo, Separate but Not Equal: a Call for the Merger of the New York State Supreme and Family Courts, 40 Columbia Law School Journal of Law and Social Problems 657 [2007]; Lippman, Court Reform: Vital to Judicial Accountability; NYLJ, December 6, 2006, at 2, col 1; Matrimonial Commission, Report to the Chief Judge of the State of New York at 25 [Feb 2006], available at www.courts.state. ny.us/ip/matrimonial-commission), and increasingly recognized by the courts (George A. v Ivett A., 14 Misc 3d 622 [Sup Ct Bx Co 2006]; Moss v Davis, 11 Misc 3d 1060a, 7 [City Ct, Rochester 2006], People v Allen, 9 Misc 3d 235, 3, n1 [Sup Ct Bronx Co 2005]). Therefore, the Father's motion to dismiss the Mother's second and third causes of action is denied.

In accordance with the above decision, it is

ORDERED that the motion to dismiss is granted as to the first cause of action for constructive trust only; and it is further

ORDERED that the motion to dismiss is denied as to the second and third causes of action.

This constitutes the decision and order of the Court. [*7]

Dated: March 23, 2010So Ordered:

____________________

Ellen Gesmer, JSC Footnotes

Footnote 1: To the extent that the Father ran many of the family's expenses through the business, as the Mother alleges in her affidavit, she additionally enjoyed at least some of the profits of the business to the same extent that the Father did during their relationship.