Wolanin v Wolanin

[*1] Wolanin v Wolanin 2013 NY Slip Op 50691(U) Decided on April 29, 2013 Supreme Court, Albany County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2013
Supreme Court, Albany County

Karen Wolanin, Plaintiff,

against

Gregory Wolanin, Defendants.



474-12



APPEARANCES:Tully Rinckey PLLC

Attorneys for Plaintiff

By: Jennifer J. Corcoran, Esq.

441 New Karner Road

Albany, New York 12205

McNamee, Lochner, Titus & Williams PC

Attorneys for Defendant

By: Michelle L. Haskin, Esq.

677 Broadway

Albany, New York 12207-2503

Michael C. Lynch, J.

Plaintiff commenced this action for a judgment of divorce on January 25, 2012. By Decision and Order dated November 13, 2012, this Court (Lynch, J.) denied plaintiff's motion to set aside a prenuptial agreement dated July 16, 1981.Now, by Notice of Motion dated January 18, 2013, plaintiff seeks an Order interpreting the Agreement as not "waiv[ing] ... the creation of a marital estate" (Corcoran Affirmation ¶2) "It is well settled that duly executed prenuptial agreements are generally valid and enforceable given the strong public policy favoring individuals ordering and deciding their own interest through contractual arrangements'. As with all contracts, prenuptial agreements are construed in accord with the parties' intent, which is generally gleaned from what is expressed in their writing. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms'.[*2]

(Van Kipnis v. Van Kipnis, 11 NY3d 573, 577 [2008] [cit. om.]).

Here, the Prenuptial Agreement (hereinafter, the Agreement) provides, in relevant part: Each of the parties, except as herein provided, shall separately retain all rights in his or her own property, whether now owned or hereafter acquired, and except as otherwise provided herein, each of them shall have the absolute and unrestricted right to dispose of such separate property free from any claims that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been consummated between them.

(Exhibit A, ¶1).

Now, plaintiff's counsel contends that the Agreement does not define the word "separate property", and does not waive the creation of a marital estate or acquisition of marital property. Accordingly, she argues, "[a]ny property acquired during the marriage that cannot specifically be traced back to property owned by a party at the time of the execution of the Agreement (i.e. separate property), and which was acquired during the marriage through the parties' wages, is in fact marital property subject to distribution pursuant to equitable distribution and the Domestic Relations Law".

(Corcoran Affirmation ¶4). In response, defendant's counsel contends that the "logical and rational" interpretation of the agreement is that "each party would retain all assets titled in his or her own name, whether they owned them at the time of signing the Agreement or acquired thereafter, as if they were never married" (Haskin Affirmation ¶10).

A prenuptial agreement that provides for the division of property must be interpreted with Domestic Relations Law § 236 (B), which defines both "marital property" and "separate property" and provides that, unless there is a duly executed prenuptial agreement, "marital property" must be equitably distributed and "separate property" must remain separate (Van Kipniss Supra; Manditch v Manditch, 87 AD3d 985, 987 [2011]).The statute thus permits parties to either "expressly waive or opt out of the statutory scheme governing equitable distribution" or to, "specifically designate as separate property assets that would ordinarily be defined as marital property subject to equitable distribution under Domestic Relations Law § 236 (B) (5)" (Van Kipniss, Supra at 578).Although the parties' intent "must be clearly evidenced by the writing" (Id., quoting Tietjen v Tietjen, 48 AD3d 789, 791, [2008]), there is no "categorical requirement that a prenuptial agreement must set forth an express waiver of equitable distribution" (Id. at 579).

The Domestic Relations Law defines "marital property" as "...all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held..."[*3]

(Domestic Relations Law §236 B (1)[c])

Further, as relevant to this dispute the statute defines "separate property" as "property described as separate property by written agreement of the parties pursuant to [Domestic Relations Law §236 B (3)]" (Domestic Relations Law §236 B (1)[d](4)).

In this Court's view, reading the prenuptial agreement with the statute, the prenuptial

agreement is not ambiguous. Rather, it is clear that the parties specifically agreed to designate as "separate property" assets that would ordinarily be defined as marital property. Contrary to plaintiff's argument, the prenuptial agreement clearly defines "such separate property" to be "his or her own property, whether now owned or hereafter acquired". Accordingly, the prenuptial agreement here does permit separate ownership of each asset held in each party's name, even if it was acquired during the marriage.

Notwithstanding the foregoing, it appears that the parties agree that any assets that are not "separate property" as that term is defined by the agreement, are "marital property" and thus subject to equitable distribution.The parties have not advised and it is not apparent whether the parties chose to commingle any property during the marriage. Accordingly, although the Court has determined that the agreement is valid and now finds that it is unambiguously defines "separate property", the factual issue with regard to whether any specific asset falls within the definition of "separate property" or "marital property" remains. If this issue is not resolved by mutual agreement, it must be decided at trial.

Accordingly, based on the foregoing it is

ORDERED AND ADJUDGED that plaintiff's motion is denied; and it is further

ORDERED AND ADJUDGED that the parties are directed to appear at a conference before this Court on May 13, 2013 at 10:30 a.m. at the Albany County Courthouse, Albany, New York.

This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for defendant. The below referenced original papers are being filed with the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:, 2013

Albany, New York

________________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

Affirmation dated January 18, 2013 (Jennifer Corcoran, Esq.), with Exhibit A;

Affidavit sworn February 7, 2013 (Michelle Haskin, Esq.).