Gutherz v Gutherz

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[*1] Gutherz v Gutherz 2014 NY Slip Op 50768(U) Decided on May 14, 2014 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2014
Supreme Court, Kings County

Norman Gutherz, Plaintiff,


Tatyana Filippova Gutherz, Defendant.


David J. Seidemann, Esq.
Seidemann & Mermelstein
Attorney for Plaintiff
974 East 27 Street

Brooklyn, New York 11210
Robert A. Ugelow, P.C.
Attorney for Defendant
26 Court Street

Brooklyn, New York 11242
Jeffrey S. Sunshine, J.

Upon the foregoing papers, motion sequence numbers 1, 2, 3, 4, 5 and 6 are consolidated for disposition. Defendant Tatyana Filippova Gutherz (the wife) moves for an order: (1) setting aside a Pre-Nuptial Agreement dated June 17, 1996 (the Prenuptial Agreement) due to fraud, duress, coercion and overreaching and by reason of the conduct of plaintiff Norman Gutherz, estopping him from enforcing its terms; (2) setting aside an amendment to the Post-Nuptial Agreement dated July 22, 1996 on the same grounds; and (3) awarding pendente lite counsel fees in the amount of $3,500. By separate motion, defendant moves for an order: (1) directing plaintiff to serve her with a copy of his Statement of Net Worth and copies of all joint bank accounts and investment statements, as well as the other documents set forth in the preliminary conference order dated July 8, 2013; (2) permitting her to withdraw up to 50% of the funds held in the parties' joint accounts to pay her living expenses as needed, but more particularly to allow her to buy a new car and to pay for approximately $3,000 of dental work; and (3) awarding her additional pendente lite counsel fees in the amount of $5,000. Plaintiff cross-moves for an order granting him full use and exclusive occupancy of the marital residence, located in Manhattan Beach. Defendant moves for an order: (1) granting her temporary exclusive use, occupancy and possession of the marital residence; and (2) directing that plaintiff vacate the marital residence and live with his daughter, where he has been residing since June 2013. Defendant moves for an order: (1) directing plaintiff to provide a legible copy of the Statement of Net Worth that he provided to the court on September 17, 2013; (2) directing plaintiff to pay one-half of his monthly income, including one-half of his pension, directly to her, since he closed the parties' joint account at JP Morgan Chase in violation of the terms of the Prenuptial Agreement; and (3) awarding her additional pendente lite attorneys' fees in the amount of $7,500. Plaintiff moves for an order granting him summary judgment on the issue of the validity and enforcement of the terms of the Prenuptial Agreement and for costs, attorneys' fees and sanctions for defendant's filing a frivolous motion for exclusive use and occupancy of the marital residence.


The parties were married on June 30, 1996 in Brooklyn. This is the second marriage for plaintiff and the third marriage for defendant. Plaintiff has two daughters from a prior marriage and defendant has two daughters from two previous marriages, the parties have no children together.

Procedural Background

After the currently pending motions were made, the parties entered into several stipulations that resolved some of the disputed issues. By so ordered stipulation dated September 17, 2013, plaintiff agreed to give defendant $51,400 from their joint account held by Vanguard and one-half of the joint account maintained at Chase, with said amounts subject to reallocation; the Postnuptial Agreement was also vacated on consent. By so ordered stipulation dated November 18, 2013, the parties agreed that plaintiff would pay defendant one-half of his monthly income, including the payment that he receives from his pension. By so ordered stipulation dated January 6, 2014, the parties agreed that defendant would have exclusive use and occupancy of the marital residence and that plaintiff would continue to pay defendant one-half of his monthly retirement payments. By so ordered stipulation dated March 19, 2014, the parties agreed that both of them would reside in the marital residence and neither of them would undertake any construction work that would exacerbate the medical condition of the other.

The Prenuptial Agreement

Defendant's Contentions

In support of her request for an order setting aside the Prenuptial Agreement, defendant explains that she was born in Russia in 1948. She graduated from college there in 1971 with a degree in English language. From 1971 to 1974, defendant taught German and English in Siberia. In 1974, she returned to Russia with her parents and she found a part time job teaching German and English until 1976. In that year, defendant married and had her first child, a daughter, born in October 1976. In 1978, she and her husband divorced. On January 18, 1983, defendant gave birth to her second daughter. She married that child's father in 1991.

In September of 1992, defendant came to the United States with her two daughters and her divorced husband. She attended English classes, since she had not used the language for many years. In 1993, defendant obtained a job as a substitute teacher, teaching living and vocational skills to mentally disabled adults who came to this country from Russia; she worked full time until 1998 and then continued to work part time until 2004. In 1994 or 1995, defendant and her second husband separated.

Towards the end of 1995, defendant met plaintiff. After dating for seven or eight months, plaintiff asked her to marry him. A few weeks after he proposed, plaintiff told defendant that he had money and gave her a piece of paper listing what he owned. In June 1996, plaintiff alleges that defendant gave her the Prenuptial Agreement and told her to find a lawyer so that they could sign it. Defendant accordingly made an appointment with Mark Stofsky, Esq. Plaintiff drove her to the appointment and waited for her in the car. Defendant alleges that Mr. Stofsky read the Prenuptial Agreement while she was in his office and suggested that provisions requiring plaintiff to pay tuition for her daughters be added. After plaintiff had the Agreement so modified, defendant signed the document on June 17, 1996. The parties married approximately two weeks later.

Defendant avers that at the time that she signed the Prenuptial Agreement, she trusted plaintiff completely and if he told her to do something, she did it without question because she trusted him and did not know what the customs in the United States were with regard to marriage. Defendant alleges that "when he said that we had to sign an agreement about [his]; money, [she]; did not ask him why or otherwise object since [she]; loved him and it did not matter whether he had money or he did not." Defendant further contends that she did not read the Prenuptial Agreement before she signed it, no one explained its terms to her, she did not read English well and the legal terms in the agreement confused her. Defendant contends that she therefore did not know that she would be prevented from seeking to obtain support from plaintiff in the event that they divorced because she signed the Prenuptial Agreement. Defendant also claims that she frequently suffers from bronchitis and that she was in the middle of such an attack when she went to see Mr. Stofsky, so she was dealing with coughing fits and had difficulty breathing. Defendant also alleges that when she signed the Prenuptial Agreement, she did not see any financial documents to substantiate plaintiff's claim that he owned property that he valued at over $770,000. Plaintiff also told defendant that he would be adding handwritten pages to the Prenuptial Agreement after she signed it listing what he owned.

Defendant states that after 2007, when she found out that she had signed a Postnuptial Agreement that addressed the parties' Tax Deferred Annuity Retirement Plans (TDAs), she began reading everything. Nonetheless, she continued to sign anything that plaintiff asked her to because he would stop supporting her or would not allow her to continue living in the martial residence if she violated his rules. Defendant goes on to describe the alleged abuse that she claims plaintiff subjected her to during the marriage. For example, defendant asserts that plaintiff strictly controlled the parties' finances and although the Prenuptial Agreement provides that all of the parties' earnings during the marriage would be deposited into joint accounts to which they each had access, she was not aware of the existence of any such accounts and plaintiff told her that she was prohibited from using any money without his permission. Further, when she was employed, plaintiff did not allow defendant to use the money that she earned for herself. Defendant also alleges that plaintiff gave her an allowance to buy food and to cover her other expenses. She claims that if plaintiff thought that she spent too much money, he would add the sum that he believed was inappropriate to the "debt list" and deduct it from her future allowance, which resulted in her not having money to buy food on some occasions. Defendant also asserts that plaintiff prevented her from resuming her teaching career by refusing to sign papers that she needed to work; he repeatedly called her names; and he refused to allow her to drive, telling her that she was not a safe driver.

Defendant goes on to allege that in approximately 2004, plaintiff became obsessed with humidity and mold in the house and was constantly using chemicals, bleach, air conditioners and dehumidifiers, which made her bronchitis return. Plaintiff also covered the windows with plastic and aluminum foil, which prevented sunlight and outside light from coming into the house and he came into her bedroom with a flashlight at night to check on the humidity. In addition, defendant claims that plaintiff did not allow her to cook, take hot showers or do laundry when the humidity was high. She asserts that plaintiff's conduct persisted, despite the fact that at least three professional inspections indicated that there were no mold or humidity problems in the house.

Defendant thus concludes that the Prenuptial Agreement should be set aside because of her ethnic Russian background, her obedience to plaintiff, plaintiff's threats to deprive her of money during the marriage and his pattern of abusive behavior towards her. Defendant also alleges that plaintiff should be estopped from seeking to enforce the Prenuptial Agreement because he failed to comply with its terms during the marriage.

Plaintiff's Contentions

In opposition to defendant's application and in support of his cross motion seeking to enforce the Prenuptial Agreement, plaintiff argues that defendant was represented by counsel when she signed the Prenuptial Agreement. He also asserts that the deposition of Mr. Stofsky establishes that when he represented her, he conversed with defendant in English. Moreover, in her moving affidavit, defendant states that she signed the agreement because she loved plaintiff, which effectively negates her claim that she signed the Prenuptial Agreement because she was forced, coerced or under duress.

Plaintiff also argues that defendant's claim that she was not familiar with English and was unable to communicate in this language is without merit. In this regard, Mr. Stofsky testified that he would have gotten an interpreter if defendant had requested one and that he would not allow a client to sign an agreement if he or she did not understand its terms. Plaintiff further alleges that he always communicated with defendant in English and that defendant regularly read books that were written in English, read the New York Times everyday and attended movies in which English was spoken. Moreover, defendant obtained a college degree in the English language in 1971 in Russia and got a masters degree in New York in 2003, where all of her courses were taught in English and all of her papers were written in English. She also taught English in Russia and taught in the English language here. At oral argument defendant's counsel stated that even though defendant taught English in Russia that it was "not the same English" as the English in the Agreement.

MR. UGELOW:... The fact is, the Russian language, and there are cases that say that, the fact that if a client can't understand an agreement because of the language difference, that is enough to set aside an agreement. And she spoke Russian with an English accent, or should I say English with a Russian accent. The point would be that this is a legal agreement.

The Court noted, on the record, that many people in New York speak English but have a different native tongue and that "in of itself is not a basis" to vacate an agreement.

THE COURT:... She taught English in Russia, right?

MR. UGELOW:Not the same English.

THE COURT:But she taught English in Russia?

MR. UGELOW:It's not the same English that's in this agreement which is a legal agreement.

THE COURT:And she had a lawyer?

MR. UGELOW:Who simply read it. ...

Plaintiff goes on to allege that the Prenuptial Agreement is fair, since the majority of his wealth was accumulated through his inheritances. Moreover, plaintiff opines that the Agreement provides handsomely for defendant, since she will receive one-half of the parties' Vanguard account, which has a balance of approximately $100,000; one-half of his social security payments; 17% of his monthly pension checks; 50% of the growth of $60,000 deposited into his TDA(s); and she remains in possession of all the wealth that she accumulated prior to the marriage. Thus, defendant is not in danger of becoming a public charge. Plaintiff avers that he believes that defendant is now seeking to set aside the Prenuptial Agreement because she chose to stop working after she obtained her master's degree, which has put her in an uncomfortable financial position.

Finally, plaintiff alleges that although he denies the claims made by defendant regarding his abusive conduct, as detailed in her affidavit in support of her demand to vacate the Prenuptial Agreement, he contends that none of defendant's allegations, even if believed to be true, serve to establish that she executed the Agreement because of fraud, duress or coercion prior to the marriage.

Defendant's Reply

In reply, defendant argues that at his deposition, Mr. Stofsky did not recall any of the details surrounding his representation of her or her execution of the Prenuptial Agreement, and instead testified with regard to the "usual procedures" that he followed in his practice. She goes on to allege that when she went to see Mr. Stofsky, she did not ask him any questions, since she went to his office to sign the Prenuptial Agreement, as plaintiff told her to.

Defendant further avers that plaintiff fraudulently signed the Prenuptial Agreement, knowing that he did not intend to be bound by the terms of the Agreement. She again emphasizes that plaintiff violated the terms of the Prenuptial Agreement when he failed to respect her property and personal rights by abusing her emotionally, psychologically, physically and financially. She further argues that the Prenuptial Agreement is unfair and that plaintiff took advantage of her ethnic Russian background and her obedience to his commands, reiterating her assertions that plaintiff controlled the parties' finances throughout the marriage, never provided her with copies of any financial documents and never substantiated what he claimed to own when the Prenuptial Agreement was executed. Defendant also contends that plaintiff violated the Prenuptial Agreement when he required her to deposit her income while she was working into the joint account, but did not give her access to the funds; when he refused to provide her with any portion of the money he deposited into his retirement accounts or to receive any share of his pension payments or TDAs; and when he refused to pay for the college education of her children. Defendant thus concludes that plaintiff should not be permitted to benefit from an agreement that he violated.[FN1]


In general, a post-nuptial agreement " which is regular on its face will be recognized and enforced by the courts in much the same manner as an ordinary contract"' (Petracca v Petracca, 101 AD3d 695, 697, 956 NYS2d 77 [2d Dept 2012], quoting Levine v Levine, 56 NY2d 42, 47, 451 NYS2d 26 [1982]). It must be recognized, however, that " "courts have thrown their cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity"'" (Santini v Robinson, 68 AD3d 745, 749, 891 NYS2d 100 [2d Dept 2009], quoting Kessler v Kessler, 33 AD3d 42, 46, 818 NYS2d 571 [2d Dept 2006], quoting Christian v Christian, 42 NY2d 63, 72, 396 NYS2d 817 [1977]). "Thus, while there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties' (Brassey v Brassey, 154 AD2d 293, 295, 546 NYS2d 370 [1st Dept 1989]), an agreement between spouses or prospective spouses may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct" (Cioffi-Petrakis v Petrakis, 103 AD3d 766, 767, 960 NYS2d 152 [2d Dept 2013], lv denied 21 NY3d 860, 971 NYS2d 251 [2013], citing Christian, 42 NY2d at 73; Petracca, 101 AD3d 695; Weinstein v Weinstein, 36 AD3d 797, 798, 830 NYS2d 179 [2d Dept 2007]; Lombardi v Lombardi, 235 AD2d 400, 652 NYS2d 549 [2d Dept 1997]; accord Infante v Infante, 76 AD3d 1048, 1048-1049, 908 NYS2d 263 [2d Dept 2010]; [a stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse's overreaching]). Stated differently, "[s];eparation agreements may be set aside if their terms evidence a bargain so inequitable that no reasonable and competent person would have consented to it" (Bright v Freeman, 24 AD3d 586, 588, 808 NYS2d 359 [2d Dept 2005]), bearing in mind that "an agreement is not unconscionable "merely because, in retrospect, some of its provisions were improvident or one-sided"'" (Rauso v Rauso, 73 AD3d 888, 889, 902 NYS2d 573 [2d Dept 2010], quoting Schultz v Schultz, 58 AD3d 616, 616, 871 NYS2d 636 [2d Dept 2009], quoting O'Lear v O'Lear, 235 AD2d 466, 652 NYS2d 1008 [2d Dept 1997]).

The burden of proof is on the party seeking to invalidate the agreement (see e.g. Weinstein, 36 AD3d at 798, quoting Lombardi, 235 AD2d 400; Forsberg v Forsberg, 219 AD2d 615, 631 NYS2d 709 [2d Dept 1995]). "A party attacking the validity of the agreement has the burden of coming forward with evidence showing fraud, which will not be presumed, and must have as its basis evidence of overreaching — the concealment of facts, misrepresentation or some other form of deception" (Stawski v Stawski, 43 AD3d 776, 777, 843 NYS2d 544 [1st Dept 2007], citing Matter of Sunshine, 51 AD2d 326, 381 NYS2d 260 [1st Dept 1976], affd 40 NY2d 875, 389 NYS2d 344 [1976]). In addressing the issue of the enforceability of the Prenuptial Agreement, it must also be recognized that as a general provision of contract interpretation, "a party who signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it" (Arnav Indus. v Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300, 304, 727 NYS2d 688 [ 2001], citing Gillman v Chase Manhattan Bank, 73 NY2d 1, 537 NYS2d 787 [1988]; Pimpinello v Swift & Co., 253 NY 159 [1930]; Metzger v Aetna Ins. Co., 227 NY 411 [1927]).

In this case, the court finds that defendant fails to raise an issue of fact with regard to whether the Prenuptial Agreement should be invalidated on any ground. In the first instance, the court finds that defendant's claim that plaintiff misrepresented or deceived her in any manner in an effort to induce her to sign the Prenuptial Agreement is without merit. In the second instance, the court agrees with plaintiff's contention that defendant's claims regarding his alleged abuse of her after the parties married is irrelevant to the determination of whether the agreement should be set aside for conducting relating her execution of the document. Further, although defendant alleges that she did not know the full extent and value of the defendant's assets, and as a result was unable to understand the full ramifications of signing the agreement, an alleged failure to disclose assets does not, standing alone, constitute fraud or overreaching sufficient to vitiate an agreement, particularly in the absence of evidence of an attempt to conceal or misrepresent the nature or extent of the assets (see generally Cohen v Cohen, 93 AD3d 506, 506-507, 940 NYS2d 250 [1st Dept 2012]; Strong v Dubin, 48 AD3d 232, 233, 851 NYS2d 428 [1st Dept 2008]; Panossian v Panossian, 172 AD2d 811, 569 NYS2d 182 [2d Dept 1991]).

In addition, defendant's allegation that she did not have sufficient time to review the agreement, which the parties signed weeks before the wedding, or her contention that she did not understand the terms of the agreement because of her limited understanding of English, are similarly found to be specious. Most significant in this regard is the fact that defendant had obtained a degree in English while residing in Russia and taught English both there and in this country when she arrived here. Her assertion that she did not understand the language is accordingly found to be patently incredible (see e.g. Sunshine, 51 AD2d at 328 [the asserted facts that petitioner lacked a complete understanding of English, did not possess a higher education and did not read the agreement at the time she executed it, did not lead to the conclusion that she was a victim of fraud or overreaching on the part of decedent when she signed the agreement]; Starayeva v Starayev, 50 AD3d 354, 858 NYS2d 88 [1st Dept 2008], lv denied 14 NY3d 704, 898 NYS2d 100 [2010]; [defendant's alleged lack of understanding of English does not tend to show fraud or overreaching such as might warrant invalidating the stipulation]; Kuznetsov v Kuznetsova, 39 Misc 3d 1215(A), 1215A [New York County Sup Ct 2013]; [the husband's failure to read the entire agreement and claimed lack of proficiency with the English language were not valid reasons to deny the validity of the agreement]). Moreover, defendant was represented by counsel when she signed the Prenuptial Agreement, so that she had the opportunity to have the terms explained to her, even if she choose not to exercise this option because of her love for plaintiff and her desire to marry him (see generally Smith v Walsh-Smith, 66 AD3d 534, 535, 887 NYS2d 565 [1st Dept 2009], lv denied 14 NY3d 704, 898 NYS2d 100 [2010]; [that defendant was represented by counsel paid for by plaintiff does not by itself raise a triable issue of fact as to duress or overreaching]; see also Sunshine, 51 AD2d at 328).

Thus, since there is no showing of fraud, duress or over reaching raised by defendant, defendant's application to vacate the Prenuptial Agreement is denied (see generally Barocas v Barocas, 94 AD3d 551, 942 NYS2d 491 [1st Dept 2012], appeal dismissed 19 NY3d 993, 951 NYS2d 468 [2012]; [the circumstances surrounding the execution of the agreement disclosed no issue of fact as to whether there was overreaching]; cf. Rabinovich v Shevchenko, 93 AD3d 774, 775, 941 NYS2d 173 [2d Dept 2012]; [the facts that the prenuptial agreement was presented to the defendant just before the marriage ceremony; that it was drafted in English, a language which she did not understand at that time; and that she did not have the opportunity to have the agreement reviewed by an attorney or translated into her native language before she signed it supported that finding that the defendant had been coerced into signing the agreement so that it was unenforceable against her]).

This conclusion is further supported by the language in the Prenuptial Agreement which provides that:

"The parties further acknowledge that they have read this agreement and fully understand same; that the provisions are fair, just, adequate, reasonable and consistent with their best interests; and accordingly that they accept such provisions freely and voluntarily and not as a result of any coercion, fraud, duress or undue influence."

(Prenuptial Agreement, para Thirteenth, p 18). Finally, this holding is also consistent with defendant's allegation, as made in her moving papers, that she would have signed anything that plaintiff asked her to because she loved him and wanted to marry him.

The court also declines to find that the Prenuptial Agreement should be set aside because defendant waived her right to maintenance (Prenuptial Agreement, para Sixth, p 9-11). As is relevant to this issue, Domestic Relations Law § 236(B)(3) provides that an agreement entered into by the parties with respect to spousal maintenance shall be valid and enforceable provided that the terms thereof "were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of the entry of final judgment" (see generally Deckoff v Deckoff, 284 AD2d 426, 726 NYS2d 567 [2 Dept 2001]). The court finds that the maintenance provisions at issue herein were fair and reasonable when the Prenuptial Agreement was executed, since both parties were employed and were accordingly capable of being self supporting. The court further finds that the waiver is not unconscionable now, since plaintiff is now retired and defendant is entitled to receive one-half of the money earned by the parties during the marriage (Prenuptial Agreement, para Fourth[a], p 6) and a percentage of their TDAs (id. at para Fourth[b], p 6-7).

Similarly, the court also finds that the Prenuptial Agreement, when read as a whole, is not unconscionable or so one-sided that it should be set aside. More specifically, although the agreement provides that the each party maintains his or interest in separate property, Domestic Relations Law § 236B(5)(b) states that "[s];eparate property shall remain such." The Prenuptial Agreement also provides, as noted above, that the parties will equally share all income earned by them during the marriage and will share in pension benefits pursuant to the formula set forth therein. Thus, it cannot be concluded that the Prenuptial Agreement is so unfair " as to shock the conscience and confound the judgment of any [person]; of common sense'" (Smith, 66 AD3d at 534 [internal citations omitted]),

The court also finds that defendant's claim that plaintiff should be estopped from enforcing the Prenuptial Agreement is without merit. "To establish equitable estoppel, the defendant was required to show that the plaintiff's conduct induced her significant and substantial reliance upon an oral modification,' and that the conduct relied upon to establish estoppel [was]; not otherwise . . . compatible with the agreement as written'" (Parker v Navarra, 102 AD3d 935, 936-937, 958 NYS2d 754 [2d Dept 2013], quoting Rose v Spa Realty Assoc., 42 NY2d 338, 344, 397 NYS2d 922 [1977]). To support her claim of estoppel, defendant does not rely upon any alleged oral modifications to the Prenuptial Agreement, but instead relies upon her contention that plaintiff failed to comply with the Prenuptial Agreement. In this regard, it must recognized that the remedy for a breach of a provision contained in the agreement would more properly be to commence an action seeking to enforce the terms, and not an action seeking to set it aside (see generally Darrin v Darrin, 40 AD3d 1391, 1393, 838 NYS2d 678 [3d Dept 2007], lv dismissed 9 NY3d 914, 844 NYS2d 168 [2007]; [claim of fraud in the inducement as evidenced by defendant's failure to abide by various provisions in the agreement, specifically his failure to increase his monthly payments to her on their tenth anniversary and to transfer title to certain property, related to defendant's breach of the agreement, not the validity of the agreement itself, and are insufficient to raise a question of fact as to any undisclosed intention on defendant's part not to perform the promises therein at the time the agreement was executed]). Thus, since defendant fails to allege facts demonstrating that plaintiff's conduct was incompatible with the written agreement, or that he did not intend to abide by its terms when it was executed, her request to set the Prenuptial Agreement aside on these grounds is denied as well.

From this it follows that plaintiff's cross motion seeking a judgment declaring the Prenuptial Agreement to be valid and enforcing its terms is granted.

Exclusive Occupancy

Plaintiff's Contentions

In support of his demand for exclusive use and occupancy of the marital residence, plaintiff first argues that the house is his separate property that was purchased by him in 2000 with $550,000 in cash. Plaintiff explains that in 1997, both his aunt and his father passed away and he inherited $1.8 million dollars that was placed in a separate account; he contends that he used these funds to purchase the marital residence. Plaintiff further argues that his claim that he purchased the marital residence with his inheritance is also supported by the fact that there was never a mortgage on the property. Plaintiff accordingly concludes that since defendant will never obtain possession of the marital residence in equitable distribution, she should not now be awarded exclusive use and occupancy.

Plaintiff goes on to argue that exclusive use and occupancy is usually awarded so that the lives of the children of the marriage are not disrupted and their home environment is preserved. Here, the parties have no children. Further, defendant can afford to live elsewhere, since he gave her $60,000 in cash from their joint bank accounts, he is currently paying her one-half of his monthly pension and he is paying the carrying costs on the marital residence. Plaintiff also argues that while defendant is residing at the property, he can neither repair it or sell it. In this regard, he asserts that the house is in need of immediate repairs because of the mold and humidity issues and because of the damage sustained as the result of Hurricane Sandy.

Finally, plaintiff argues that he should be awarded counsel fees and sanctions for having to oppose defendant's motion for exclusive use and occupancy of the marital residence, and because her motion compelled him to make his cross motion.

Defendant's Contentions

In support of her request for exclusive use and occupancy of the marital residence, defendant argues that plaintiff voluntarily left the home in January 2013 to live with his daughter. Defendant alleges that she is also seeking this relief because plaintiff told her that he wants to reconstruct the first floor of the house, which she alleges he contends was rendered uninhabitable by Hurricane Sandy. Defendant asserts that she believes that plaintiff wishes to begin reconstruction because she would again develop bronchitis and stomach problems if she was exposed to the dust and chemicals that would be used, so that she would be forced to leave. Defendant also repeats her description of plaintiff's obsessive behavior with regard to mold and humidity and his alleged abusive conduct towards her.

In opposition to the arguments raised by plaintiff, defendant asserts that although plaintiff alleges that the martial residence was purchased with his separate funds, he fails to attach documentary evidence to support his claim. Defendant goes on to argue that since both of the parties were working when they first married and they were residing in a rented apartment while they were looking for a house to buy, the money used to purchase the martial residence included their earnings and did not come solely from plaintiff's inheritance, so that she is as much entitled to reside there as he is. Defendant also argues that she should be awarded exclusive use and occupancy of the marital residence because living near the ocean has cured her breathing problems and swimming five to six months a years has cured her back problems. She concludes by asserting that what the court does with regard to the marital residence in making its determination for equitable distribution has no bearing upon her need to reside in the home during the pendency of the action.


"Exclusive occupancy of the marital residence may be awarded upon a showing that a spouse's presence has caused domestic strife and that spouse has voluntarily established an alternative residence" (Iannone v Iannone, 31 AD3d 713, 714, 820 NYS2d 86 [2d Dept 2006], citing Kristiansen v Kristiansen, 144 AD2d 441, 534 NYS2d 104 [2d Dept 1988]; Wolfe v Wolfe, 111 AD2d 809, 490 NYS2d 555 [2d Dept 1985]). It has also been held, however, that "[w];hile the Equitable Distribution Law makes provision for the use and occupancy of the marital home without regard to the form of ownership of such property' (Domestic Relations Law § 236[B];[5];[f]), any order so providing must necessarily be limited to the extent that it will not deprive a person of his title to or possession of property he or she acquired prior to the marriage'" (Zelnik v Zelnik, 169 AD2d 317, 331-332, 573 NYS2d 261 [1st Dept 1991], quoting Vitkun Vitkun, 108 Misc 2d 814, 816, 438 NYS2d 981 [New York County Sup Ct 1981]).

In this case, the court has determined above that the Prenuptial Agreement is valid and enforceable. As is relevant to the issue of exclusive use and occupancy, the agreement provides that the separate property owned by each party as of the date of the marriage, and all income, appreciation and exchanges of such property, shall remain the separate property of each and that it shall not be subject to equitable distribution (Prenuptial Agreement, para First, p 2-5). From this it follows that if plaintiff's assertion that he purchased the marital residence with his separate inheritance is proven, defendant should not be awarded exclusive use and occupancy of the property, particularly since the parties do not have any minor children. Inasmuch as defendant denies this claim, however, and argues that the marital residence was purchased with money that the parties saved after they were married, and plaintiff does not come forward with any evidence to refute this claim, the issues of whether the marital residence is plaintiff's separate property and if not, whether either of them is entitled to exclusive use and occupancy, must be resolved at a trial. Until such time as a determination of these issues can be made, the parties are directed to continue to occupy the marital residence together in accordance with the Stipulation dated March 19, 2014. There is no basis at law to exclude either of the parties at this time.

Further, plaintiff's request for an award of sanctions against plaintiff for making her motion seeking exclusive use and occupancy of the marital residence is denied. "In its discretion, a court may award costs and financial sanctions against an attorney or party resulting from frivolous conduct" (Flaherty v Stavropoulos, 199 AD2d 301, 302, 605 NYS2d 99 [2d Dept 1993], citing 22 NYCRR 130-1.1[a]). Rule 130-1.1(c)(1) provides that conduct is frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" or if it "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (see generally Kornblum v Kornblum, 34 AD3d 749, 751, 828 NYS2d 402 [2d Dept 2006], citing Kucker v Kaminsky & Rich, 7 AD3d 491, 492, 776 NYS2d 72 [2d Dept 2004], lv denied 3 NY3d 607, 785 NYS2d 24 [2004]). "Enforcement of the sanctions rule is essential to deter conduct that wastes judicial resources and inhibits the proper administration of the court system" (Gordon v Marrone, 202 AD2d 104, 111, 616 NYS2d 98 [2d Dept 1994], lv denied 84 NY2d 813, 623 NYS2d 181 [1995]). "Where . . . the frivolous action of counsel results in improper use of the court's time as well as that of counsel, sanctions [are]; properly assessed" (CC Communication Control v Kelly Intl. Forwarding Co., 166 AD2d 173, 175, 564 NYS2d 69 [1st Dept 1990]).

Applying these general rules to the facts of this case, it must be found that since the court held that defendant is entitled to a hearing on the issue of whether the marital residence is plaintiff's separate property, which would preclude an award of exclusive use and occupancy to her, it cannot be said that defendant's motion was frivolous.

Counsel Fees

Defendant's Contentions

Defendant is requesting that she be awarded attorneys' fees in the of $15,000 because as of the date of making her last motion, she owed counsel $5,934. More specifically, defendant alleges that she paid her attorney $3,500 when she signed the retainer and $2,434 using a credit card. Defendant also alleges that she expects significant additional fees to be incurred in resolving the issues raised in this action.

Plaintiff's Contentions

In opposition, plaintiff argues that since defendant will leave the marriage with one half of the $100,000 on deposit in the parties' Vanguard account, 17% of his pension check and 50% of what $60,000 deposited into his TDA has grown to, the playing field is level without awarding defendant any interim counsel fees. He further opines that if defendant is given such an award, there is a danger that she will abuse the litigation process by filing baseless motions. Finally, plaintiff argues that counsel fees may not be awarded in an action seeking to rescind the terms of a prenuptial agreement.


"An award of interim counsel fees is designed to create parity in divorce litigation by enabling the nonmonied spouse to litigate the action on equal footing with the monied spouse" (Palmeri v Palmeri, 87 AD3d 572, 572, 929 NYS2d 153 [2d Dept 2011], citing O'Shea v O'Shea, 93 NY2d 187, 193, 689 NYS2d 8 [1999]; Gaffney-Romanello v Romanello, 82 AD3d 930, 918 NYS2d 736 [2d Dept 2011]; Meltzer v Meltzer, 63 AD3d 702, 882 NYS2d 422 [2d Dept 2009]; Prichep v Prichep, 52 AD3d 61, 65, 858 NYS2d 667 [2d Dept 2008]; accord Falcone v Falcone, 109 AD3d 787, 788, 971 NYS2d 132 [2d Dept 2013]). Further, an award of an attorney's fee is a matter committed to the sound discretion of the trial court (see e.g. Vitale v Vitale, 112 AD3d 614, 614-615, 977 NYS2d 258 [2d Dept 2013], citing Cusumano v Cusumano, 96 AD3d 988, 947 NYS2d 175 [2d Dept 2012[).

"In determining whether to award such a fee, the court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Gruppuso v Caridi, 66 AD3d 838, 839, 886 NYS2d 613 [2d Dept 2009], quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881, 524 NYS2d 176 [1987]). Further, "[a];ny award should be "reasonable in light of the skill, experience and background of . . . counsel, the nature of the services rendered, the difficulty and complexity of the issues of fact and law involved in the case, as well as the time actually spent on"' the matter" (Pauk v Pauk, 232 AD2d 386, 391, 656 NYS2d 740 [2d Dept 1996], lv dismissed 89 NY2d 982, 656 NYS2d 740 [1997], quoting Willis v Willis, 149 AD2d 584, 540 NYS2d 677 92d Dept 1989], quoting Silver v Silver, 63 AD2d 1017, 1018, 406 NYS2d 352 [2d Dept 1978]).

It has also been recognized that:

" [A];n attorney's failure to provide written, itemized bills at least every 60 days pursuant to 22 NYCRR 1400.2 will . . . preclude collection of a fee (see Wagman v Wagman, 8 AD3d 263, 777 NYS2d 678 [2d Dept 2004]; Julien v Machson, 245 AD2d 122, 666 NYS2d 147 [1st Dept 1997]). The failure to abide by these rules, promulgated to address abuses in the practice of matrimonial law and to protect the public, will result in preclusion from recovering such legal fees' (Julien v Machson, 245 AD2d 122, 122, 666 NYS2d 147 [1st Dept 1997]; see Behrins & Behrins v Sammarco, 305 AD2d 346, 347, 759 NYS2d 151 [2d Dept 2003]; Mulcahy v Mulcahy, 285 AD2d 587, 728 NYS2d 90 [2d Dept 2001])."

(Gahagan v Gahagan, 51 AD3d 863, 864, 859 NYS2d 218 [2d Dept 2008]). Thus, it has been held that a party is not entitled to an award of an attorney's fee when he or she fails to submit adequate documentation of fees billed and/or paid (see e.g. Weinschneider v Weinschneider, 50 AD3d 1128, 1129, 857 NYS2d 613 [2d Dept 2008], citing 22 NYCRR 202.16[k];[2]; Bertone v Bertone, 15 AD3d 326, 790 NYS2d 35 [2d Dept 2005]; Wong v Wong, 300 AD2d 473, 474, 752 NYS2d 85 [2d Dept 2002]). As is also relevant to defendant's application, in awarding attorneys' fees, it has been held that "under Domestic Relations Law § 237 the wife was not entitled to fees incurred in challenging the enforceability of a prenuptial agreement" (Van Kipnis v Van Kipnis, 43 AD3d 71, 81, 840 NYS2d 36 [1st Dept 2007]; accord Witter v Daire, 81 AD3d 719, 720, 917 NYS2d 870 [2d Dept 2011]; Kessler, 33 AD3d at 49-50).

Herein, defendant's application includes fees for legal work undertaken in her attempt to set aside the Prenuptial Agreement, work for which she cannot recover fees from plaintiff. Further, the court is not provided with billing information that is sufficient to determine the amount of fees incurred with regard to this or any other issue (Witter, 81 AD3d at 720; Van Kipnis, 43 AD3d at 81, Kessler, 33 AD3d at 49-50); although defendant annexes a copy of her retainer agreement to her moving papers, no billing statements are provided. For the Court at this juncture to be able to make a determination of a proper amount of pendente lite fees, if any, are appropriate for legal services not related to the attempt to vacate the agreement affirmations and billing records should be submitted on any subsequent applications. Accordingly, defendant is not entitled to an award of interim attorneys' fees, since her application is not in compliance with controlling court rules (see Gahagan, 51 AD3d at 864). Moreover, in the absence of any billing information, the court is unable to determine the reasonableness of the fees incurred.

The court also notes that defendant made four separate motions seeking pendente lite relief. In so doing, she offers no explanation as to why her demands for relief could not have been made in fewer motions, which would have greatly reduced the amount of attorneys' fees incurred by both her and plaintiff. Further, until such time as the hearing on the issue of whether the marital residence is plaintiff's separate property, it is not possible to determine whether there is any merit to defendant's motion seeking exclusive use and occupancy. Finally, since the court upheld the validity of the Prenuptial Agreement, and it is thus found to be enforceable, few other, if any, issues remain to be resolved in this action.

Accordingly, defendant's motion for an award of pendente lite attorneys' fees is denied with leave to renew upon papers addressing the above issues. The Court notes that plaintiff's position that the defendant should not be granted legal fees because he believes that she will abuse the litigation process by filing baseless motions is rejected. The court will not punish defendant for not settling the matter; she has her right to a day in court (see Comstock v. Comstock, 1 AD3d 307, N.Y.S.2d 220 [2 Dept.,2003];["... an award of an attorney's fee is designed to redress the economic disparity between spouses. It is not intended to address a party's decision to proceed to trial rather than agree to a settlement (see O'Shea v. O'Shea, 93 NY2d 187 (1999)"]). While defendant certainly would be held accountable if she fails to litigate properly or abuses the process the concept that defendant should not be denied counsel fees to prevent litigation is inapposite to Domestic Relations Law 237 and must be outrightly rejected.

Similarly, it is well established that a party is not required to exhaust their assets for the purposes of payment of counsel fees. Even though defendant will receive a large sum of money from distribution of the marital assets, this does not preclude an award of counsel fees (see generally Maher v. Maher, 196 AD2d 530, 601 N.Y.S.2d 165 [1993]; see also Hackett v. Hackett, 147 AD2d 611, 538 N.Y.S.2d 20 [1989];[counsel fees were warranted even though wife had received substantial distribution of marital assets as well as adequate maintenance]).


Plaintiff's motion seeking to have the Prenuptial Agreement declared valid and to have its terms enforced is granted. Defendant's motions for attorneys' fees are denied with leave to renew upon proper papers, as discussed above. The issue of whether defendant or plaintiff is entitled to exclusive use and occupancy of the marital residence shall be determined at trial. In the meantime, plaintiff is authorized to make any reasonable repairs to maintain the property while assuring that they do not impact on defendant's health. The parties shall complete any remaining limited discovery and a note of issue shall be filed by June 13, 2014. The matter is set down for trial on all issues for July 14, 2014.

All other relief requested is denied.

The foregoing constitutes the order and decision of this court.

E N T E R:

May 14, 2014

Hon. Jeffrey S. Sunshine



Footnote 1:The court will not address defendant's assertion that plaintiff's cross motion should not be considered on the ground that it is submitted merely in an attempt to submit a sur-reply. In the first instance, plaintiff is entitled to make any cross motion that he believes is appropriate. Moreover, defendant was afforded an opportunity to address all of the issues raised in plaintiff's papers.

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