Anonymous v Anonymous

[*1] Anonymous v Anonymous 2021 NY Slip Op 50110(U) Decided on February 12, 2021 Supreme Court, New York County Cooper, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 12, 2021
Supreme Court, New York County

Anonymous, Plaintiff-Husband,

against

Anonymous, Defendant-Wife.



XXXXX



For the Plaintiff

Krauss Shaknes Tallentire & Messeri, LLP

350 Fifth Avenue, Suite 7620

New York, NY 10118

For the Defendant

Mantel McDonough Riso, LLP

410 Park Avenue, 17th Floor Suite 1720

New York, NY 10022
Matthew F. Cooper, J.

This action for divorce, like all too many that come before the court, demonstrates that great fame and fortune do not always promote domestic happiness. To the contrary, in "high-profile" cases such as this, where the parties live a luxurious lifestyle unimaginable to most of the population, financial success and celebrity status often place great strains on a marriage.[FN1] Additionally, and more relevant to this decision, the case highlights the perils of having prenuptials agreements drawn by lawyers, even highly competent ones, who do not specialize in family and divorce law. The prenuptial agreement at issue here failed in its intended purpose of keeping the parties from litigating the meaning of its terms, necessitating this court's involvement in the interpretive process.

I. BACKGROUND

This is the second time the parties have been married to one another. They first married in 1997. After that marriage ended in 2003, the parties married again in 2004. Prior to each marriage, they entered into a prenuptial agreement. On November 18, 2004, in advance of their current marriage, the parties signed the prenuptial agreement (the "PNA") that is now at issue. Notably, the PNA was primarily drafted by a partner at a large law firm who, although highly regarded as a commercial litigator, appears to have had limited experience with matrimonial matters.

As might be expected, the financial terrain that the PNA was intended to navigate was elevated and complex. By the time the parties first met, the plaintiff-husband was already a world-renown Academy Award winning actor who had made major ventures into film production, real estate, hotels and restaurants. The defendant-wife, who had worked in travel and hospitality, would later become an actress, philanthropist, and the founder of a specialty food business. Plaintiff came to this marriage, as he did to the first marriage, with substantial assets, while defendant largely came with the assets that she had obtained through the prior prenuptial agreement.

Plaintiff commenced this action in 2018. For the first few years that the case was before the court, attention focused on child custody and parental access issues. To the parties' credit, they were ultimately able to resolve those matters. Unfortunately, there has been no resolution of the financial issues, even after the parties engaged in an extensive mediation that the court found was required under the terms of the PNA. At the center of the dispute over finances, and particularly the equitable distribution of assets, is the PNA. This decision is occasioned by a motion sequence where each side calls upon the court to interpret that agreement.

II. THE MOTION AND CROSS MOTION

In this motion sequence, plaintiff moves, pursuant to CPLR 3103, for a protective order precluding extensive discovery sought by defendant pertaining to his purported separate property. Plaintiff contends that except for what the PNA designates as marital property, all the assets that defendant claims to be marital are his separate property, and thus, not subject to equitable distribution. These include the assets that are either listed in the schedule that is attached as Exhibit A to the PNA, are referenced in the body of the PNA itself, or else are itemized in his Statement of Net Worth dated February 6, 2019. Plaintiff also moves, pursuant to CPLR 2304, to quash five information subpoenas seeking documents from his accountants, agents, and lawyers pertaining to income he earned over the entirety of the marriage.

Defendant cross-moves, pursuant to CPLR 3212, for partial summary judgment determining and declaring her rights under the PNA. Specifically, as a result of plaintiff allegedly failing to comply with Article Six of the PNA, she seeks to sever that article from the PNA as unenforceable, and to enforce Articles Four and Five.[FN2] Further, she requests that this court determine and declare that plaintiff's separate property is limited only to those specific assets listed in Exhibit A to the PNA, subject to a showing that such assets have not been comingled or transmuted into marital property, and that all other assets existing be deemed marital property to be divided equally among the parties. Lastly, she seeks, pursuant to CPLR 3124, to compel the discovery sought in her First Notice for Discovery and Inspection and to [*2]enforce the five subpoenas mentioned above.

III. DISCUSSION

As a public policy matter, courts favor and encourage the use of prenuptial agreements to assist marrying couples in memorializing the parties' agreed-upon entitlements in the areas of spousal maintenance, equitable distribution of assets, and counsel fees in the all-too-often event of a divorce. Prenuptial agreements are most often utilized when one or more participants enters a marriage with significant wealth and the parties seek consensus in defining a potentially complex marital estate. What is of some noteworthiness, and what has become more than a coincidental occurrence, is the frequency with which this court and others are called upon to interpret and analyze prenuptial agreements drafted by counsel with little or no experience in matrimonial matters. In this case and many like it, highly financially successful individuals find it perfectly reasonable to engage their personal attorney, usually partners in large, self-described "full service" law firms, to handle the important and consequential task of drafting their "prenup."

In today's complex legal world, lawyers, much like physicians in the medical field, must increasingly focus their practices on specific sectors of the law. And although partners in "Big Law"[FN3] firms, who are often some of the best and brightest minds in the profession, are surely highly experienced and well-versed in a multitude of civil and criminal matters, the facets and intricacies of divorce law are most often not one of them.[FN4] The unfortunate consequence is that even if a flawed prenuptial agreement is ultimately upheld or enforced in court, a permeable one will almost always wind up there, costing the parties, and particularly the more-monied spouse, monumental sums of legal and expert fees in the process. As one famously witty matrimonial attorney once said, "if you ask a neurosurgeon to perform your knee-replacement surgery, you may wind up with a limp."

Contract Interpretation

Here, although not a broad-side challenge to the enforceability of the PNA as a whole, the issues raised in the motion and cross motion place its interpretation and scope of its terms front and center of this dispute. To that end, the law of this state provides that 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 interests through contractual arrangements'" (Van Kipnis v Van Kipnis, 11 NY3d 573, 577 [2008], quoting Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]). "Prenuptial agreements addressing the ownership, division or distribution of property must be read in conjunction with Domestic Relations Law ["DRL"] § 236 (B)," which provides that marital property must be distributed equitably, unless the parties choose to opt out of equitable distribution under the DRL via agreement ([id. at 577-578], see DRL § 236 [B] [5] [a]-[c]).

The court's focus when interpreting a prenuptial agreement, as with all contracts, is the [*3]parties' mutual intent, " which is generally gleaned from what is expressed in their writing" (Anonymous v Anonymous, 137 AD3d 583, 584 [1st Dept 2016]). "When interpreting a prenuptial agreement 'the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized'" (Strong v Dubin, 75 AD3d 66, 68 [1st Dept 2010], quoting Matter of Schiano v Hirsch, 22 AD3d 502, 502 [2d Dept 2005]). Finally, a contract is "ambiguous" if it is "reasonably susceptible of more than one interpretation" (Chen v Yan, 109 AD3d 727, 729 [1st Dept 2013], quoting Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]), and, in the event of ambiguity, a court may consider extrinsic evidence (Van Kipnis, 11 NY3d at 577).

1. PNA: Terms Upon Which the Parties Agree

The PNA did not completely fail in its intended purpose of predetermining the entitlements of the parties in the event of a divorce. While each side proffers conflicting interpretations as to many, if not most, of the essential provisions of the PNA, there is consensus as to some of the terms. The parties agree that, pursuant to the express terms of the PNA, the marital residence (valued at approximately $20 million) will be sold and the net proceeds evenly split between the parties after expenses, separate property credits, and repayment of encumbrances. They further agree that plaintiff shall purchase for defendant a residential property of her choosing valued at $6 million. Moreover, as concerns spousal maintenance, they agree that plaintiff shall pay to the defendant the annual sum of $1,000,000, less defendant's "Assumed Income,"[FN5] until the earlier of defendant's remarriage or either party's death, irrespective of how long (or brief) their marriage.[FN6]

2. PNA: Articles Four and Five

The main areas of dispute are found in Articles Four, Five, and Six of the PNA.

Article Four defines separate property, Article Five defines marital property, and Article Six (which will be discussed in the next subsection) addresses the distribution of both separate and marital property in the event of a divorce. Because both plaintiff and defendant were entering into the marriage with separate property assets and investments, they agreed to annex financial statements to the PNA, referenced as Exhibits A and B, respectively, disclosing and putting the opposite party on notice the entirety of each of their net worth.

Article Four defines "Separate Property," in relevant part, as:

¶ 1.(a)(i) All property owned or acquired by such party before the EffectiveDate of this Agreement; (ii) in the case of [plaintiff-husband], all property listed on the annexed Exhibit A, including deals in progress listed on the annexed Exhibit A, and in the case of [defendant-wife], all property listed on the annexed Exhibit B; (iii) all property inherited by such party before or after the Effective Date of this Agreement ; (b) The income, rents and proceeds derived from or accrued upon such party's Separate Property; the enhancement and appreciation in [*4]value of such party's Separate Property ; and property acquired in exchange for or the increase in value of such Separate Property, together with the investment and reinvestment thereof and the income, rents, proceeds and profits of such investment and reinvestment and the enhancement and appreciation thereof; (d) The business, career, profession, employment, earning capacity or celebrity status of such party .

¶ 2.A party's Separate Property shall include real, personal or mixed real and personal property, and intellectual property, including, but not limited to, interests in any business enterprise; interests in the right or potential right to receive royalties, income and profits from any artistic or creative work; and college and graduate degrees and licenses to engage in a particular field of endeavor, wheresoever situated, whether vested or contingent. A party's Separate Property shall not be treated as community property, marital property or any other form of property in which the other party has any interest by reason of the marital relationship in the State of New York or any other jurisdiction, foreign or domestic."

¶ 5.From and after the marriage, [plaintiff-husband] will retain all right, title and interest of every kind and character in and to all Separate Property he may now own or hereafter acquire, separate and apart from [defendant-wife], free of any and all claims, liens or rights of [defendant-wife] (emphasis added).

Article Five defines "Marital Property" in relevant part, as:

¶ 1.Any and all real or personal property that is acquired by either party or both parties after the date of their marriage and before an Operative Event that is not Separate Property as defined herein shall constitute Marital Property .

¶ 3.It is expressly understood and agreed by [the parties] that any and all income and/or property received, during the marriage, by [plaintiff-husband] from his Separate Property, or from property resulting from the appreciation in [plaintiff-husband]'s Separate Property, shall be the sole and Separate Property of [plaintiff-husband]. In the event Separate Property of [plaintiff-husband] is used to purchase a marital asset, the Separate Property of [plaintiff-husband] so used remains [plaintiff-husband]'s Separate Property. The remaining equity in said marital asset shall be divided equally between [the parties] (emphasis added).

It is important to note that neither party argues that the terms of the PNA are anything other than clear and unambiguous. In fact, the parties agree that the PNA's language clearly evinces their mutual intent to define the scope of separate and marital property, only in two very disparate ways. Plaintiff asserts that the PNA's language is straightforward, as he states in his affidavit that "every asset I own, every business interest I acquire, every dollar of income that I earn from my career or businesses, and anything I acquire or invest in using that income, whether before or after the marriage, is my separate property." In support of his contention, plaintiff reasons that the PNA would not so generously give to defendant sizable spousal support and distributive awards — providing defendant with assets valued at tens of millions of dollars even if the marriage were to end almost as soon as it began — if it was the intention of the parties that plaintiff's defined separate property also be subject to equitable distribution,

Defendant argues that the PNA specifically and explicitly provides that all marital property be split equally between the parties and that all income and assets acquired during the marriage are, in fact, marital property. In support of her argument, defendant alleges that, upon the parties' reconciliation, they decided that they would enter into a more "equal" partnership, which is why the PNA entitles her to what plaintiff earned and acquired during their second marriage, in contrast to the prenuptial agreement governing their first divorce, which waived such an interest. Oddly, while [*5]simultaneously arguing that the PNA is clear and should be enforced as written, defendant repeatedly urges this court to consider the parties' 1997 prenuptial agreement that governed their first marriage — an agreement that was considerably shorter, simpler, and more straightforward than the one here — as evidence of the parties' mutual intent in the PNA. Defendant even goes so far as to attach a side-by-side comparison of the operative terms of both documents.

As cited above, the law of this state requires that a court consider extrinsic evidence only in the event of an ambiguity (Van Kipnis, 11 NY3d at 577). It follows that when analyzing a clear and unambiguous contract, which the court here agrees the PNA to be for the purpose of deciding these motions, the intent of the parties must be gleaned from the four corners of the writing with a practical interpretation of the language employed, so that the parties' reasonable expectations are realized (Bennett v Bennett, 103 AD3d 825 [2d Dept 2013]). Therefore, the whole of defendant's arguments in this regard must be rejected.

Moving to defendant's central and most consequential argument regarding the PNA's interpretation, she claims that because Article Four, which governs separate property, does not specifically mention "earned income" and "assets acquired" during the marriage, both must constitute marital property — a result that would undoubtedly yield her many millions of dollars in equitable distribution.[FN7] However, she fails to adequately address the pointed language in Article Four, ¶¶ 1, 2 and 5, emphasized above, which set forth, generally, that pre-marital assets listed on Exhibits A and B, and the assets and income derived therefrom, are indeed separate property, as well as income earned during the marriage from plaintiff's "artistic or creative work." Specifically, the PNA states in Article Four, ¶ 2 that "property [real, personal, or intellectual], including but not limited to interests in the right or potential right to receive royalties, income and profits from any artistic or creative work" remain plaintiff's separate property. Although the PNA fails to explicitly define what is meant by "artistic or creative work," it cannot credibly be argued that plaintiff's principal sources of income — acting and filmmaking — are not considered an artistic or creative work. Even putting aside these clear and unambiguous terms, plaintiff funded his film projects and was paid for his acting roles through a wholly-owned production company, an entity formed before the parties' first marriage and listed on plaintiff's Exhibit A.[FN8] Article Five, which governs marital property, reiterates this understanding and specifically sets forth that plaintiff's income and appreciation derived from his separate property is not to be deemed marital property.

A plain and practical reading of the PNA provides that income earned from any pre-marital asset, artistic or creative work, and any profits realized from the investment in any pre-marital asset or artistic or creative work, provided the investments were made with separate property monies, are plaintiff's separate property. Defendant's argument that the PNA limits business interests and income derived from artistic or creative works to assets in existence as of the "Effective Date" of the PNA is belied by the language in Article Four, ¶ 5, which sets forth that plaintiff will retain separate property "he may now own or hereafter acquire" "from and after the marriage." This language [*6]clearly contemplates that assets acquired, and income earned during the marriage, derived from separate property assets, remain separate property and do not become marital property.

Next, in what amounts to nothing more than a red herring, defendant points to Article Four, ¶ 1(d) of the PNA — known in divorce law as an 'enhanced earnings' clause — which states that separate property includes "the business, career, profession, employment, earning capacity or celebrity status of such party." Indeed, effective January 25, 2016, the legislature eliminated the concept of a party's enhanced earning capacity representing a marital asset subject to equitable distribution, effectively nullifying the Court of Appeals ruling in O'Brien v O'Brien, (66 NY2d 576 [1985]), rendering the clause inapplicable here. Nonetheless, the inapplicability of the enhanced earnings clause does not somehow convert plaintiff's income derived from his "business, career, profession, [and] employment" into marital property. As mentioned, the PNA's independent and consistent provisions in Article Four, ¶ 2 confirm just the opposite.

The above analysis additionally applies to defendant's claim to a share of plaintiff's interests in a global chain of high-end Japanese restaurants, another of plaintiff's significant investment assets, which expanded and franchised numerous locations during the marriage. Again, the PNA independently and consistently provides that separate property includes "income, rents and proceeds derived from or accrued upon such party's Separate Property," and "interests in any business enterprise" which applies to the restaurant assets identified on Exhibit A to the PNA.[FN9] Further, the PNA is clear that separate property includes the "enhancement and appreciation in value" of those assets, which from a plain and practical reading encompasses expansion of the restaurant assets by increasing its franchise and adding hotel partnerships.

To summarize, a plain reading, as difficult as that may be, of Articles Four and Five of the PNA, as read within the context of the PNA as a whole, establishes that the overwhelming majority of plaintiff's business and artistic assets constitute his separate property, whether having been brought by him to the marriage or having increased in scope and value during the marriage. Such a reading also establishes that the bulk of plaintiff's income earned during the marriage, whether from acting, film production, or business ventures, constitutes his separate property as well.

3. PNA: Article Six

Article Six evinces the parties' clear desire to opt out of the general rule that "commingling of premarital assets with marital assets creates a presumption that the separate property has become marital property" (Popowich v Korman, 73 AD3d at 526 [1st Dept 2010]). In doing so, it requires both parties to cooperate in annual "record keeping" with a "designated accountant," with same functioning as a tracing mechanism to accurately account for, and guard against, commingling between separate and marital property when making investments or acquiring assets during the marriage. Article Six additionally provides that after appropriate disclosure to the designated accountant of all investments made and income received, including the source, the accountant shall determine what, if any, property is marital and subject to equitable distribution.

The parties, however, inexplicably failed to comply with Article Six. In fact, the accountant designated in the PNA was discharged in 2008, a new designated accounting firm was never [*7]ultimately agreed upon, and the annual record keeping was never officially performed.[FN10] As a result of this non-compliance, defendant argues that plaintiff has waived his right to any of the benefits of Article Six, and asks this court to sever and deem it unenforceable, and find that all the parties' property is marital, and thus, subject to equitable distribution or, in the alternative, enforce it (see Mantel Reply Aff, ¶¶ 41-42). In response, plaintiff asserts that Article Six is moot because, aside from the marital residence, he never invested separate property into marital property, or vice versa. Further, he correctly points out that defendant too failed to comply with Article Six, which required that she keep detailed records and make the required financial disclosures to the designated accountant, even before his discharge in 2008.

There is no question that Article Six is one of the central functions of the PNA and should have been complied with — by both parties — and the failure to do so, although not a condition to preserving separate property claims (see Article Six, 2[g]), clearly frustrates the parties' mutual intent to accurately define the marital estate. However, even though the PNA contains a severability clause that would salvage the balance of the PNA if a provision is determined to be unenforceable (see Article 23, ¶ 4), defendant's insistence on invalidating Article Six is misplaced and not supported by law. In her memorandum of law, defendant concludes that by the express terms of the PNA, Article Six was included only for plaintiff's benefit and based on this claim, plaintiff's non-compliance should deem it unenforceable under various case law. Putting aside the distinguishing facts therein, which there are many, the premise on which this position rests is inherently flawed.[FN11]

The plain and practical language of Article Six does not favor either party but applies to and benefits both equally and operates to allow either party to reverse comingled marital and separate property assets to his or her benefit through the "record keeping" process.[FN12] Specifically, it provides, in relevant part:

(A) Upon the occurrence of an Operative Event: (1) [Plaintiff's] Separate Property shall be retained by or distributed to [Plaintiff]; (2) [Defendant's] Separate Property shall be retained by or distributed to [Defendant]; (3) Marital Property shall be divided equally between and distributed in equal amounts to [Plaintiff and Defendant].(C) The parties acknowledge that during their marriage, in order to provide flexibility, liquidity and stability; and to take advantage of opportunity, they may, from time to time, use marital property in separate property investments or to acquire separate property, and use separate property in marital property investments or to acquire marital property.

The parties acknowledge that it may be difficult to differentiate whether marital or separate property is being used for a particular investment or property acquisition, and therefore difficult to determine the marital or separate character of that investment or property acquisition

(emphasis added).

Whatever its defects and deficiencies, and notwithstanding the immense burden its compliance poses, a burden that is only amplified at this late date by the parties having mutually neglected their compliance obligations, Article Six sets forth a clearly discernible process integral to what the PNA sought to accomplish. Under the circumstances, defendant's argument in favor of severing and invalidating Article Six must be rejected and the relief she seeks denied.

Likewise, plaintiff's sweeping and conclusory assertion that Article Six is "moot," because there was no commingling of separate and marital property, must also be rejected. The PNA is clear that this determination is for the designated accountant to make, not a party. Inasmuch as Article Six must be enforced, the parties shall endeavor to select a new designated accountant (or if they cannot agree, one will be selected by the court), the required disclosures made, and the calculations performed as set forth therein. Notwithstanding any difficulty in producing the required records, some being as much as 15 years old or more, the burden falls on the party seeking a separate property credit, as it relates to business ventures and/or property acquisitions made during the marriage, to adequately document to the designated accountant a basis for same.

IV. DISPOSITION OF THE MOTION AND CROSS-MOTION

Plaintiff's motion for a protective order precluding the various forms of disclosure sought and to quash the five subpoenas served on his plaintiff's accountants, agents, and lawyers, is granted. Inasmuch as the disclosure devices and the subpoenas largely concern assets and income that the PNA defines as being plaintiff's separate property, defendant is not entitled to the bulk of the information, records and documents that she seeks. To the extent she seeks disclosure concerning the alleged comingling of separate and marital property, the PNA must be read as a waiver to such discovery contingent on the parties complying with Article Six. Because Article Six, which is being enforced here, requires that all documentary submissions to the designated accountant be made available for inspection by either party in the office of the designated accountant, it obviates the need to exchange further information.[FN13]

Defendant's cross motion for partial summary judgment, by which she seeks a declaration that all property other than that specifically listed in Schedule A to the PNA be deemed marital property, is denied. The terms of the PNA defining what constitutes marital property and what constitutes separate property are interpreted and found to applicable as forth above. Similarly, the branches of the cross motion seeking to sever Article Six from the PNA as unenforceable and to compel discovery are denied. The record keeping process provided for under Article Six, with which both sides must comply, satisfies and supplants any right to discovery that defendant may have in this action.

IV. CONCLUSION

If the purpose of the PNA was to avoid litigation over finances in the event the parties divorced, it failed on that account, the litigation already having been extensive and expensive. And [*8]if the purpose of the PNA was to create an efficient, workable procedure of "record keeping" to differentiate separate from marital property in the event of comingling, it failed there too, the parties having ignored the process almost from the time of its inception.

This is not to say that the PNA was without function. In the end, it defines what is plaintiff's separate property, what is defendant's separate property, and what is the parties' marital property. It also sets forth a procedure, cumbersome as it may be, for dealing with the issue of comingled property. Finally, it dictates the amount and duration of spousal maintenance to be paid by plaintiff to defendant.

What is ultimately so frustrating, and at the same time so perplexing, is how parties who had already been divorced from one another — and thus were going into this marriage with eyes wide open as to its high potential for failure — would not have taken special care to have their "prenup" drafted by seasoned matrimonial lawyers. One cannot help thinking that had lawyers who deal regularly with divorce, understand how prenuptial agreements work in practice and not just in theory, and traffic every day in the world of "separate/marital property," "comingled property, " equitable distribution," and the like, been involved in the production of this prenuptial agreement, there might not have been the need for this litigation and, in turn, for this decision.

In accordance with the foregoing, it is

ORDERED, that plaintiff's motion is granted, and defendant's cross-motion denied, as indicated above.

All other arguments made in the motions were carefully considered and deemed without merit.

This constitutes the decision and order of the court.

Dated: February 12, 2021

E N T E R:

________________________________

MATTHEW F. COOPER, J.S.C. Footnotes

Footnote 1:In the hopes of shielding their identity and avoiding the glare of the media, the parties sought and were granted "anonymous" filing status. But as routinely happens, the press was quick to ferret out who the parties are, and the tabloids and other media outlets have reported widely on the case. Although great care was taken to protect the privacy of the parties' children — as must and should happen in every case that comes before a New York court — the parties cannot expect that same right of privacy extending to their financial matters.

Footnote 2:All of the articles are set forth in relevant part and discussed in Section III below.

Footnote 3:"Big Law" is a nickname for large, high-revenue law firms that are usually located in major U.S. cities, such as New York, Chicago and Los Angeles. These firms often have multiple branches, sometimes in smaller cities, as well as an international presence.

Footnote 4:There are exceptions, of course, with some large all-purpose firms having highly regarded matrimonial practices within their ranks.

Footnote 5:"Assumed Income" is defined in the PNA under Article Nine, ¶ 2.

Footnote 6:The PNA provides for reductions in the annual spousal maintenance award if plaintiff's income significantly falls in any given year, but in no event shall the award be reduced to less than $500,000.

Footnote 7:Defendant's heavy reliance on these purportedly threshold prenuptial terms is unavailing and not adequately supported by law.

Footnote 8:Defendant cannot credibly argue that she was unaware of the production company's function and purpose before entering the PNA (see PNA, Article Three: Financial Disclosure). Therefore, it should be no surprise to defendant that plaintiff's acting and filmmaking revenues ran through this entity.

Footnote 9:Exhibit A to the PNA lists the original restaurant, along with its numerous branches and related entities in New York, California, Las Vegas, Dallas, and elsewhere, as well as various partnerships and corporate operating companies.

Footnote 10:The record shows that while the parties initially agreed to a successor designated accountant under the PNA, plaintiff — perhaps unwittingly — effectively tainted the successor's objective neutrality by retaining him to perform his personal 2008 tax returns. Thereafter, defendant rightfully objected to this selection by letter dated May 7, 2009 (see Exhibit D to cross motion).

Footnote 11:Among other unconvincing arguments, defendant erroneously suggests that Article Six should be treated like a restrictive covenant, which is designed to benefit only one party (see DeCapua v Dine-A-Mate, Inc., 292 AD2d 489 [2d Dept 2002]).

Footnote 12:The parties' first prenuptial agreement awarded defendant a substantial sum of money upon their divorce, a portion of which (approximately $2 million) she brought to the second marriage as her separate property in the form of real estate, jewelry, cash, etc. (see PNA, Exhibit B).

Footnote 13:The various case law and arguments advanced by the parties in relation to the discovery issues raised in the motions need not be discussed because the PNA's express language controls and resolves the dispute.