Jorge R. v Janett S.

[*1] Jorge R. v Janett S. 2020 NY Slip Op 50868(U) Decided on July 27, 2020 Supreme Court, New York County Hoffman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2020
Supreme Court, New York County

JORGE R., Plaintiff,

against

Janett S., Defendant.



***



Counsel for Plaintiff: JANICE G. ROVEN, ESQ. , ROVEN LAW GROUP, P.C., NEW YORK, NY

Counsel for Defendant: BENNETT R. SHELSKY, ESQ., BENNETT R. SHELSKY LAW FIRM, PLLC, BABYLON, NY
Douglas E. Hoffman, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 were read on this motion to/for MISCELLANEOUS.

Plaintiff Husband Jorge R. (the "Plaintiff" or "Husband") moves for an order equitably distributing claimed marital assets, including $[redacted by court] in a checking account and $[redacted by court] in another account [NYSCEF doc. 3]. Implicitly, Husband seeks an order granting him summary judgment as a matter of law under CPLR § 3212(b) that the August 23, 2016 postnuptial agreement [NYSCEF doc. 6, the "Agreement"], which would have precluded equitable distribution of these assets, is not enforceable.

Defendant Wife Janett S. ("Defendant" or "Wife") opposes, asserting that the Agreement is "valid and binding" [NYSCEF doc. 13, W. affir.], stating that although the agreement was signed without an attorney (which need not invalidate the agreement), it demonstrates clear intent by Husband to relinquish any right in the funds to Wife, the consideration for which was "given for the loss suffered by Defendant when Plaintiff left her after a long term marriage." [Id.]

The Agreement was signed by Husband before a notary, but was not duly acknowledged as required under DRL § 236(B)(3), and was not signed (and therefore, also not acknowledged) by Wife. The one-page agreement states, in its entirety:

This agreement Notwithstanding anything to the contrary in any provisions of the law, is made and entered into as of August 23, 2016 by Jorge [P.].As the effective date of this agreement I, Jorge [P.] hereby transfers to Janett [P.] as her sole and exclusive property, the following account(s):Checking:[*** redacted by court]

Balance as of 08/23/2016

[*** redacted by court]

Savings:

[*** redacted by court]

Balance as of 08/23/2016

[*** redacted by court]

As the effective date of this agreement I agree to release and relinquish to Janett [S.] anyand all right, title, claim, or interest I may in respect to the account(s) in this agreement.

[signed, dated 8/23/16, includes a stamp of a notary, although no notarial statement][NYSCEF doc. 6]

Analysis

A motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." CPLR 3212(b). The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

As noted, only Husband signed the Agreement, which purports to relinquish Husband's rights and title to certain moneys to Wife. The Agreement was signed in Garden City.[FN1] The Agreement is not acknowledged. Under the DRL, "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 the manner required to entitle a deed to be recorded." DRL § 236(B)(3). The certificate of an acknowledgment of a conveyance or other instrument in respect to real property situated in this state, by a person, must conform substantially with a specific form. Real Prop. Law § 309-a. There is a strong public policy for acknowledgments to authenticate legal instruments, which may give the instrument legal validity, and works to prevent the recording of false instruments or fraudulent executions. Court of Appeals decisions on this subject require strict compliance with DRL § 236(B)(3) for nuptial agreements to be held valid and enforceable. See Matisoff v Matisoff, 90 NY2d 127 (1997). In Matisoff, the Court of Appeals held that an unacknowledged postnuptial agreement was invalid, and the statute recognizes no exception to the requirement that a marital agreement be executed in the same manner as a recorded deed and "that the requisite formality explicitly specified in Domestic Relations Law § 236(B)(3) is essential" (id. at 132).

In Galetta v Galetta, 21 NY3d 186, 190-198 (2013), the Court of Appeals reaffirmed Matisoff, holding that lack of full compliance with the DRL § 236(B)(3) acknowledgment requirement prevents enforcement of a marital agreement. DRL § 236(B)(3) requires that marital agreements be executed with the "same formality as a recorded deed." [Id.] Real Property Law § 291, governing the recording of deeds, states that "[a] conveyance of real property ... on being duly acknowledged by the person executing the same ... may be recorded in the office of the clerk of the county where such real property is situated." "The acknowledgment [*2]requirement fulfills two important purposes. First, acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person. Second, it necessarily imposes on the signer a measure of deliberation in the act of executing the document. Just as in the case of a deed where the law puts in the path of the grantor formalities to check haste and foster reflection and care, here, too, the formality of an acknowledgment underscores the weighty personal choices to relinquish significant property or inheritance rights, or to resolve important issues concerning child custody, education and care." Galetta, 21 NY3d at 196-197 [internal quotation marks and citation omitted] ).

An acknowledgment must include a detailed certificate of acknowledgment, typically contained in boilerplate language, sufficient to satisfy the requirement that the notary official indicate that he or she knew or had ascertained that the signer was the person described in the document, and that that the signer had made the requisite oral declaration, included in the clause beginning with the words "and duly acknowledged." Galetta, 21 NY3d at 193. In Galetta, both spouses signed their agreement before a notary, and while the "acknowledgment" paragraph for the wife complied with all of the statutory requirements, the "acknowledgment" paragraph for the husband omitted the "to me known and known to me" phrase. The Court of Appeals held that without this statement, the notary's "certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective. . . [because] a core component of a valid acknowledgment was not referenced in the certificate." Galetta, 21 NY3d at 193-4.

Here, the Agreement was not signed by Wife at all, and did not contain the detailed acknowledgment paragraph wherein the notary would have certified either that Husband "personally appeared to me known and known to me to be" Mr. R., or that Husband signed the Agreement in front of the notary and "duly acknowledged to" the notary that he executed the Agreement. [see, e.g., Galetta, 21 NY3d at 193-194]. Accordingly, here, as in Matisoff and Galetta, the lack of a proper acknowledgment is fatal to the Agreement's validity.

Wife's argument that Husband should still be required to perform according to this un-acknowledged Agreement as a valid "contract" also must fail, because to hold otherwise would eviscerate the Legislature's DRL § 236(B)(3) non-discretionary requirement that all postnuptial agreements be duly acknowledged, and would allow unacknowledged contracts to proceed in matrimonial actions, contrary to DRL § 236(B)(3) and the Court of Appeals' holding in Matisoff. Additionally, spouses' "contracts" that make "provision for the ownership, division or distribution of separate and marital property" have been held to fall within the "acknowledgment" requirement of DRL § 236(B)(3). See, e.g., Popowich v Korman, 73 AD3d 515, 517 (1st Dept 2015) (reversing trial court, and holding that husband's unacknowledged written guarantee of loans from wife to husband's company is unenforceable because the guarantee was a postnuptial agreement within the meaning of DRL § 236(B)(3), where "the written guaranty requires [husband] to repay the loans, [and, therefore,] it is an agreement that makes 'provision for the ownership, division or distribution of separate and marital property' . . . executed by defendant during the marriage) (quoting DRL § 236(B)(3)). The Popowich court relied on Matisoff, 90 NY2d at 132, in stating that "the plain language of Domestic Relations Law § 236(B)(3) ... recognizes no exception to the requirement of formal acknowledgment," and invalidated the unacknowledged loan guarantee.Similarly, here, the Agreement makes a "provision for the ownership, division or distribution of separate and marital property," and was [*3]signed by Husband for the benefit of Wife during the marriage. Therefore, the Agreement is not valid under DRL § 236(B)(3) and its acknowledgment requirement.

Wife also states that the Agreement, even if invalidated as a postnuptial agreement, should be considered by the court as an expression of the parties' intentions and actions, in determining the parties' equitable distribution:

Plaintiff questions whether the [Agreement] is valid. Defendant believes the [Agreement] is valid and binding. Although property may not be withdrawn from equitable distribution by statutorily non-conforming expressions of intent, such expressions may still have relevance respecting the manner in which marital property is ultimately equitably apportioned and distributed. The issue is what weight ought, in the context of equitable distribution, to be accorded the party's expressions of intent by word and deed during their marriage Matisoff v Dobi, 663 N.Y.S.2d 526, 242 AD2d 495 ([1st Dept] 1997). . . It is further respectfully submitted that this Court, if it finds the [Agreement] does not have all the technical requirements, should order equitable distribution of the assets subject to the [Agreement]reflecting the terms of the [Agreement]and the actions and behaviors of the party's herein. [NYSCEF doc. 13, W. Affir.]

In Matisoff, the Court of Appeals, after invalidating the prenuptial agreement, remanded the case to the Appellate Division, First Department for "intermediate appellate review of the trial court's [equitable distribution] award to plaintiff. . . . Although the equitable factors raised by defendant cannot save the unacknowledged agreement, they may be relevant to the Appellate Division's review of the award." Matisoff, 90 NY2d at 138. On remand, the Appellate Division, First Department held that those "equitable" considerations cannot resurrect an invalid nuptial agreement due to the "bright line" rule established by the Court of Appeals. Therefore, where the invalidated nuptial agreement is alleged to be introduced for the purposes of proving the parties' "intentions to keep property separate, whether reflected in conduct or expressed in words, then must, in light of the Court of Appeals decision in this case, be deemed wholly ineffectual respecting the basic determination as to which property is marital and which separate, unless the parties' intentions are reduced to the form of a statutorily conforming agreement. And, we note that the statute in defining 'separate property' makes no allowance for the intent of the parties, except as that intent is expressed in such a statutorily conforming writing (DRL § 236 [B][1][d][4] )." Matisoff v Dobi, 242 AD2d 495, 496—7 (1st Dept 1997). In other words, an invalid nuptial agreement cannot be "equitably" resurrected to declare certain property separate instead of marital, in the absence of a valid and duly acknowledged nuptial agreement. Nevertheless, such an invalidated agreement (which cannot be used to "withdraw [marital property by characterizing it as separate property ineligible for] equitable distribution by statutorily non-conforming expressions of intent,") an invalidated agreement could, however, be used to demonstrate "relevance respecting the manner in which marital property is ultimately equitably apportioned and distributed." [Id.] The court then went on to observe that equitable distribution, in light of the Matisoff agreement's expression of entirely separate financial lives, may not rely on a determination of which spouse is the more monied spouse, but could, however, rely on other DRL 236 factors, such as, in that case, one spouse's contributions and support of the other's career. [Id.]. The court thus upheld the trial court's post-trial determination that the wife was entitled to 40% equitable distribution of certain assets, not because she was the less monied spouse, but because of her numerous contributions (financial and otherwise) in support of her husband's career during their marriage.

Here, specific equitable distribution is premature, as the parties have not engaged in discovery: "Under the Equitable Distribution Law, broad pretrial disclosure which enables both spouses to obtain necessary information regarding the value and nature of the marital assets is critical if the trial court is to properly distribute the marital assets" Reich v Reich, 36 AD3d 506, 507 (1st Dept 2007). There has been no such pretrial disclosure, so as to provide the court with sufficient information as required "under Domestic Relations Law § 236(B)(5)(d)(9), which requires the court, in determining equitable distribution, to consider 'the probable future financial circumstances of each party' [among other listed factors]." Jaffe v Jaffe, 91 A.3d 551, 553 (1st Dept 2012). Accordingly, the court denies the instant motion without prejudice to a determination at trial upon a proper showing. This matter is already scheduled for a compliance and settlement conference later today. This constitutes the decision and order of the court.

ORDERED that any relief not granted is denied.

Dated: July 27, 2020

Douglas E. Hoffman, J.S.C. Footnotes

Footnote 1:As both parties argue the motion applying New York law, the court assumes for purposes of this motion that Garden City refers to Garden City, New York, not Garden City, New Jersey or any other state.