N.B.M. v J.M.
Annotate this CaseDecided on December 29, 2017
Supreme Court, Richmond County
N.B.M., Plaintiff,
against
J.M., Defendant.
5***3/2016
Plaintiff by: Michael A. Coscia Esq.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP.
1 MetroTech Center
Suite 1701
Brooklyn, NY 11201
Defendant by: Adelola Sheralynn Dow Esq.
1000 South Ave. LL1,
Staten Island, NY 10314
Catherine M. DiDomenico, J.
Recitation as required by CPLR 2219(a) of the papers considered in the review of the motions referenced above______________________________________________________________________________
PapersNumbered
Plaintiff's Motion to invalidate Separation Agreement (001) 1
Defendant's Motion for Summary Judgment [and Opposition] (002) 2
Plaintiff's Opposition to 002 and Reply on 001 3
Defendant's Reply on 002 4
Transcript of Argument Held on August 2, 2017 5
______________________________________________________________________________
By motion dated June 28, 2017, Plaintiff Wife seeks an Order setting aside and declaring as invalid the parties' separation agreement dated October 18, 2003. Wife further seeks an Order: (1) directing Husband to maintain the status quo pendente lite by paying certain enumerated [*2]expenses; (2) awarding her exclusive use and occupancy of the former marital home; (3) awarding her exclusive use and possession of a 2012 Jeep Liberty; (4) directing Husband to maintain insurance for her benefit; and (5) awarding her interim pendente lite counsel fees in the amount of $10,000.
By motion dated July 10, 2017 (which is a technically a cross motion) Defendant Husband seeks an Order (a) denying the Plaintiff's motion in its entirety; (b) declaring the validity of the separation agreement and enforcing its terms; (c) obligating the Plaintiff to reimburse the Defendant for expenses he paid relating to the marital home; (d) obligating the Plaintiff to pay all expenses related to the marital home, pendente lite; or (e) in the alternative, awarding Wife temporary maintenance in accordance with the statutory guidelines.
While Husband's motion also serves as his opposition to Wife's application, he consents therein to Wife having exclusive use of the Parties' Jeep Liberty, and consents to maintaining Wife's car insurance policy pendente lite. Husband also acknowledges that the "automatic Orders" obligate him to maintain Wife on his existing health insurance policy, pendente lite. (See Pg. 11, Para. 27).
Factual Background
Most of the facts pertinent to this Decision are not in dispute. The parties to this action were married in August of 2000. In or around 2002, after the parties' relationship soured, the Plaintiff sought out and hired an attorney to draft a "separation agreement." The separation agreement was signed on October 18, 2003, and both parties agree that it was properly drafted and acknowledged. See Galetta v. Galetta, 21 NY3d 186 (2013).
Despite entering into a separation agreement only two years after getting married, the parties only physically separated for a short period of time.[FN1] While the exact duration of this brief separation is disputed, both parties acknowledge that the exact duration does not affect their legal arguments regarding the validity of the separation agreement. (Tr. 8/2/17 pg.5). More relevant, is the fact that after this brief period of separation the parties reconciled, to some degree, and cohabited for the next twelve years.
Wife argues that during this period of reconciliation the parties held themselves out to be Husband and Wife, celebrated their wedding anniversary, vacationed together, shared the same bedroom and continued to have intimate relations. Husband does not dispute any of these allegations, but claims that the parties were not happy during that time frame. Husband argues that their marriage was being held together "by a string" and that Wife would frequently threaten to leave him. In this regard, it is undisputed that Wife filed for divorce in 2005, and annexed the separation agreement, but then withdrew that action without ever appearing in Court.
The parties' cohabitation ended in March of 2017 when Wife obtained an Order of [*3]Protection from the Family Court, which, amongst other things, excluded Husband from the marital home. (See Order dated 3/23/17). This Order still remains in effect as of the date of this Decision, and the family offense cause of action is currently being litigated in Family Court. This present action for divorce was commenced on September 7, 2016.
Decision
Separation Agreement
Under Domestic Relations Law §236(B)(3) "an agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in a manner required to entitle a deed to be recorded." See Rio v. Rio, 110 AD3d 1051 (2d Dept. 2013). An agreement between spouses or prospective spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability. See Cioffi-Petrakis v. Petrakis, 72 AD3d 868 (2d Dept. 2010); See also, Cohen v. Cohen, 93 AD3d 506 (1st Dept. 2012). Moreover, New York has established a "strong public policy" of allowing individuals to decide their own interests through contractual arrangements rather than through litigation. See Katsaros v. Katsaros, 80 AD3d 666 (2d Dept. 2011). It is axiomatic that a duly executed nuptial agreement is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside. See Gottlieb v. Gottlieb, 138 AD3d 30 (1st Dept. 2016).
Wife only raises one argument to challenge the validity of the parties' separation agreement. Wife argues that the parties' admitted 12-year period of reconciliation invalidated the agreement as a matter of law. In support of this argument, Wife correctly points out that their agreement indicates that it was entered into with a stated intention of living "separate and apart" (See Separation Agreement, Pg. 1). Despite this stated intention, the parties cohabitated after the agreement for an extended period of time, and held themselves out to be Husband and Wife.
Wife is correct in asserting the general rule that an otherwise valid separation agreement can be abrogated by a subsequent reconciliation. See Mullen v. Mullen, 260 AD2d 452 (2d Dept. 1999); See also, Pasquale v. Pasquale, 620 N.Y.S.2d 95 (2d Dept. 1994). However, as Wife acknowledges, the mere fact of reconciliation is not enough, rather, the parties must have intended to repudiate the agreement by reconciling. See Breen v. Breen, 495 N.Y.S.2d 195 (2d Dept. 1985). When a contrary intent is indicated by the acts and expressions of the parties, such that it appears that the parties did not intend to repudiate their agreement, said agreement will not be invalidated. See Russo v. Russo, 305 AD2d 486 (2d Dept. 2003); See also, Pugsley v. Pugsley, 288 AD2d 284 (2d Dept. 2001).
Here, Wife argues that the parties intended their continued cohabitation after the separation agreement to be a reconciliation, and the undisputed facts support that finding. Despite Husband's claims that the parties continued to have a tumultuous relationship, they did so voluntarily for at least twelve years. Moreover, when Wife filed for divorce in 2005, she withdrew the same in light of this reconciliation. However, in the present case the parties' [*4]intentions need not only be gleaned from their actions.
Husband argues that while the parties admittedly intended to cohabitate, and for that matter reconcile, that he never intended to invalidate their separation agreement. In fact, he claims that he secured a copy of the same in his mother's house in the event that Wife ever decided to divorce him again. Moreover, Husband relies upon Paragraph 10 of their agreement, under the clause "Merger and Survival" which reads as follows:
"This agreement shall not be invalidated or otherwise affected by a reconciliation between the parties hereto, or a resumption of marital relations between them."
Husband further relies upon a second clause entitled "General Provisions" that states:
"This agreement shall not be amended, modified, discharged or terminated except by a writing executed and acknowledged by the party sought to be bound."
Here, the undisputed facts clearly indicated that the parties intended to reconcile, and that they cohabitated as Husband and Wife. However, there is no clear evidence in the record that the parties intended to invalidate their agreement. Rather, the terms of that very agreement clearly indicate the opposite. Notably, the agreement was drafted by Wife's counsel, at a time when Husband was self-represented. Accordingly, under the basic tenets of contract law, any ambiguity in the agreement must be construed against the drafter. See Aron Sec. Inc. v. Unkechaug Indian Nation, 151 AD3d 674 (2d Dept. 2017).
The only fair reading of the agreement leads to the conclusion that the parties specifically considered the issue of reconciliation, and decided to clearly express their intent regarding the same. In so doing, they indicated that they did not intend for any subsequent reconciliation to invalidate their agreement, and moreover, that the agreement could only be terminated by a writing executed by the parties. There is no such writing.
Accordingly, after consideration of the very well-articulated positions set forth by both parties in their moving papers, this Court finds that the parties clearly expressed their intent regarding any subsequent reconciliation in their agreement, and thus the agreement could not be invalidated by their subsequent cohabitation, absent a writing indicating a change in their stated intention. See Brown v. Brown, 1988 NY Misc. Lexis 419 (Sup. Ct. Suff. Cty. 1988); See also, Aiello v. Aiello, 34 AD3d 708 (2d Dept. 2006); Lotz v. Lotz, 135 AD2d 1007 (3rd Dept. 1987).
For the reasons set forth above, this Court finds that the parties' separation agreement dated October 18, 2003 is valid and enforceable in this divorce action. Accordingly, Husband's application that the agreement be incorporated into any Judgment of Divorce issued in this action is hereby granted.
Summary Judgment
By Notice of Motion dated July 10, 2017 (Seq. No. 002) Husband requests an Order [*5]declaring the separation agreement valid, and granting summary judgment on its terms. Husband argues that the separation agreement controls, amongst other things, the issue of maintenance (both temporary and final) and equitable distribution. For the reasons set forth at length above, Husband's application is hereby granted, in part.
In regard to equitable distribution, the Court finds that the relevant provision in the agreement, while valid, is insufficient to form the basis for summary judgment, or a declaratory judgment, at this time, in light of the supporting documentation currently before this Court. Notably, the agreement does not specifically address the issue of title to any particular piece of property, and the schedule of property indicated on the last page is left blank. During oral argument, both parties indicated that most of the property that was ultimately purchased by the parties, including the marital home, was purchased after the agreement was signed. Moreover, as Wife raised during oral argument, she has a claim that funds from the refinance of jointly titled property may have been used to purchase separately titled properties.
Accordingly, Husband's motion for summary judgment on the issue of equitable distribution is denied at this time, without prejudice, as the record is currently too undeveloped to allow this Court to establish the assets that would, or would not be subject to equitable distribution, how they were purchased, and how they are currently titled. See Trafelet v. Trafelet, 150 AD3d 483 (1st Dept. 2017); See also, Parietti-Fogarty v. Fogarty, 141 AD3d 512 (2d Dept. 2016). Either party may file a subsequent motion for summary judgment after the completion of discovery, at which time the record can be clarified as to the identity of assets, how those assets were purchased, and how they are titled.
However, in regard to the issue of maintenance, summary judgment is hereby granted. Clause four of the parties' stipulation of settlement, which is entitled "Maintenance and Support" reads as follows:
"Each party agrees that his or her resources and income are sufficient to provide for his or her own proper maintenance and support, and neither party will claim alimony/maintenance payments from the other at any time in the future."
While the Appellate Courts of this State have repeatedly warned counsel about the distinction between temporary maintenance and final maintenance, similar language to "from the other at any time in the future" has been found to be sufficient to waive both temporary and final maintenance. See Anonymous v. Anonymous, 137 AD3d 583 (1st Dept. 2016.) ["the words 'in the future' can only mean any time after the agreement was executed, which necessarily includes when the present motion was made"]. See also, Clanton v. Clanton, 189 AD2d 849 (2d Dept. 1993). Here, the language used, when construed against Wife as drafter, is clear enough to indicate that the parties intended a total waiver of maintenance "at any time" when that claim could be made, which would necessarily include the present motion.
Accordingly, Husband's application for summary judgment on the issue of maintenance is hereby granted. Wife is precluded from seeking maintenance, either temporary or final, under the language that her counsel drafted when preparing the parties' separation agreement. To the [*6]extent that Wife raises a claim that she may become a public charge if not supported by Husband, which would arguably provide an exception to her maintenance waiver, that claim must be proven at trial. See General Obligations Law 5-311; See also Miller v. Miller, 104 AD2d 403 (2d Dept. 1984). Notably, Wife has not sought an Order granting her temporary maintenance, at this time, such that the Court would need to consider entertaining a pre-trial hearing regarding Wife's public charge claim.
Pendente Lite Relief
In addition to the applications indicated above, Wife seeks an Order granting her exclusive use and occupancy of the former marital home, pendente lite, together with a directive that Husband be responsible for the payment of the mortgage and gas bill relating to the same. In addition, Wife seeks an award of pendente lite counsel fees in the amount of $10,000.
Exclusive Use and Occupancy
Wife seeks an award of exclusive use and occupancy of the former marital home where she currently resides. Husband, in opposition, argues that while it might be "odd" or "mildly uncomfortable" for the parties to cohabitate in the former marital home, that Wife has not made out a proper claim for exclusive use and occupancy.
There are generally two grounds upon which exclusive use and occupancy can be granted. First, upon a showing that such an order is necessary to protect the safety of persons or property. Second, upon a showing that a party has voluntarily vacated the marital residence and that his or her return would cause domestic strife. See Preston v. Preston, 147 AD2d 464 (2d Dept. 1989).
It is undisputed that on or about March 23, 2017, Husband was excluded from the former marital home by an Order of Protection issued by the Family Court. To date this Order remains in effect as the case is being litigated in that forum. Accordingly, Wife's application for exclusive use and occupancy is hereby granted as a matter of law, as any other ruling would violate the Family Court's Order. Notably, Wife has had de-facto exclusive use and occupancy since March 23, 2017.
Status Quo Payments
Wife seeks an Order directing Husband to maintain the "Status Quo" regarding the former marital home where she currently resides (See E.U. & O. above). Specifically, Wife requests that Husband be obligated to continue paying for the monthly mortgage (approximately $2,314 per month) and the "fuel/gas and water bills" totaling approximately $280 per month. Notably, Wife has not sought an award of pendente lite maintenance, and this Court has found that she has waived the ability to do so. (See above).
After consideration of the unique circumstances of this case, particularly that both parties have a financial interest and equitable claim to the former marital home, this Court finds that it [*7]would be reasonable for both parties to equally share (50% / 50%) the monthly mortgage expense pendente lite. Counsel are hereby directed to confer regarding the best way to effectuate this shared payment.
However, Wife's application for Husband to pay the fuel, gas and water bills where she resides is hereby denied. Unlike the marital home, to which Husband has an equitable claim, Wife's utility bills are for her benefit only. Accordingly, any obligation for Husband to pay the same would amount to a maintenance substitute, which would be impermissible in light of the maintenance waiver discussed above.
Finally, Husband requests that he be "reimbursed" for his payment of the mortgage, and utility bills relating to the former marital home from the time he was excluded therefrom, to the filing of his motion. Husband seeks the recoupment of $3,961. After consideration of the arguments raised by both sides of this proceeding, Husband's application is hereby denied as recoupment is generally against public policy. See Rader v. Rader, 54 AD3d 919 (2d Dept. 2008). In so ruling, the Court notes that Husband will arguably recoup some of these funds in equitable distribution as they have gone towards the paydown of the mortgage relating to the marital home.
Counsel fees
Wife seeks an award of pendente lite counsel fees in the amount of $10,000. Husband opposes Wife's application, arguing that her counsel fees to date are excessive, and that the financial information before the Court is insufficient to determine which spouse is "the monied spouse". Neither party has addressed the effect, if any, of the separation agreement on this counsel fee award. Rather, during oral argument, counsel for both sides agreed that the issue of counsel fees would have to be litigated. (Tr. 8/2/17 Pg. 23).
Pursuant to DRL §237(a), a lawyer who represents a non-monied spouse may seek attorney's fees from the monied spouse in the divorce action. See O'Connor v. O'Connor, 89 AD3d 703, 704 (2d Dept 2011). Effective October 12, 2010, DRL §237(a)(5) creates a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. An award of attorney's fees will generally be warranted where there is a significant disparity in the financial circumstances of the parties. See Chesner v. Chesner, 95 AD3d 1252, 1253 (2d Dept 2012). The purpose of DRL §237(a) is to redress the economic disparity between the monied spouse and the non-monied spouse. An award of interim counsel fees under DRL § 237 is intended to allow the non-monied spouse to litigate the action on an equal footing with the monied spouse. See Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008).
In support of her application, Wife argues that Husband is the monied spouse and should be required to pay her attorney an award of $10,000 for legal fees relating to this action for divorce. Wife argues that she lacks funds sufficient to compensate her attorney without contribution from Husband. Wife annexes a copy of her retainer agreement together with detailed billing documentation (although redacted) regarding the legal services she has received to date. According to the most recent bill submitted, dated July 31, 2016 Wife owes her attorney [*8]the sum of $960. However, the billing submitted indicates that Wife has paid upwards of $30,000 in relation to this litigation, and the concurrent litigation in Family Court. Husband does not challenge the sufficiency of the billing documentation provided by Wife's counsel.
The primary factor in determining an award of counsel fees is financial need. Wife argues that Husband is the monied spouse in this action as he is a retired detective who earns an annual sum of at least $87,347 from various sources including retirement benefits. This amount is indicated on Husband's Statement of Net Worth. In addition to this basic income, Wife argues that Husband is a property owner, a real estate agent, a private investigator, and a part time basketball referee. Moreover, Wife has established that Husband is a frequent gambler, who has achieved elite status at a number of casinos. Wife, in contrast, is a self-employed dog trainer who earns in the vicinity of $21,806 as reported on her 2016 tax return. Moreover, while, for the reasons set forth above, it is impossible for this Court to resolve the issue of equitable distribution at this time, Husband has indicated that he believes he will receive a substantially greater share of the property obtained during the marriage under the terms of the parties' separation agreement.
Considering only the limited financial information available to the Court, Husband has failed to rebut the presumption in favor of an award to Wife. See Khaira v Khaira, 93 AD3d 194 (1st Dept. 2012). Under the totality of the circumstances presented, and in consideration of the parties' respective incomes, financial obligations, the amount of work already concluded, and the amount of work reasonably anticipated, Wife is hereby awarded counsel fees in the amount of $10,000 to fund this ongoing litigation. See DRL §237; See also, Straub v. Straub, 63 N.Y.S.3d 688 (2d Dept. 2017).
Husband shall be obligated to pay this counsel fee award in two equal payments of $5,000. The first payment shall be due within 30 days of this Decision, the second payment shall be due within 60 days of this Decision. The award of counsel fees herein does not preclude future applications for counsel fees, if appropriate.
Conclusion
For the detailed reasons set forth above, Wife's application to set aside the prenuptial agreement is denied. Husband's application for summary judgment enforcing the agreement is granted to the extent that the issue of maintenance is resolved. Wife's application for pendente lite relief is resolved as indicated above.
All issues raised but not decided herein are hereby referred to trial.
This constitutes the Decision and Order of the Court.
Dated: December 29, 2017
Hon. Catherine M. DiDomenico
Acting Justice Supreme Court
Footnotes
Footnote 1:Wife claims that the parties only separated for a few months, while Husband claims that they separated for close to two years.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
