Anonymous v. Anonymous

• Decision Date: 22 March 2016
• Citation: 137 A.D.3d 583,27 N.Y.S.3d 541
• Parties: ANONYMOUS, Plaintiff–Appellant, v. ANONYMOUS, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 583
27 N.Y.S.3d 541

ANONYMOUS, Plaintiff–Appellant,
v.
ANONYMOUS, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

March 22, 2016.

27 N.Y.S.3d 543

Aronson Mayefsky & Sloan, LLP, New York (Allan E. Mayefsky of counsel), for appellant.

Cohen Clair Lans Greifer & Thorpe LLP, New York (Bernard E. Clair of counsel), for respondent.

FRIEDMAN, J.P., ACOSTA, ANDRIAS, RICHTER, JJ.

137 A.D.3d 583

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered May 4, 2015, which, to the extent appealed from, denied plaintiff wife's cross motion for partial summary judgment declaring that a condominium apartment located at 195 Hudson Street is the sole and separate property of plaintiff under the terms of the parties' prenuptial agreement, and granted defendant husband's motion for temporary maintenance, modified, on the law, to deny defendant's motion for temporary maintenance, and otherwise affirmed, without costs.

The parties executed a trust agreement that designates the parties, individually and collectively, as "Trustor" of a trust that purchased the apartment at issue. The agreement was not valid because the parties' signatures were never properly acknowledged. We agree with the wife that the agreement, which is unenforceable, cannot be considered as evidence (Selinger v. Selinger, 44 A.D.3d 341, 342, 844 N.Y.S.2d 198 [1st Dept.2007] ). Nonetheless, issues of fact exist whether the parties intended to jointly own the apartment, and whether the husband was involved in any fraud in the preparation and execution of the trust agreement (see generally

137 A.D.3d 584

Ta Chun Wang v. Chun Wong, 163 A.D.2d 300, 557 N.Y.S.2d 434 [2d Dept. 1990], lv. denied 77 N.Y.2d 804, 568 N.Y.S.2d 912, 571 N.E.2d 82 [1991], cert. denied 501 U.S. 1252, 111 S.Ct. 2893, 115 L.Ed.2d 1058 [1991] ). Thus, upon the motion court's invalidation of the trust agreement, it properly declined to decide whether the deed should be reformed to reflect the wife or both parties as the true owner (U.S. Bank N.A. v. Lieberman, 98 A.D.3d 422, 423–424, 950 N.Y.S.2d 127 [1st Dept.2012] ).

Although the wife funded the purchase of the apartment and ordinarily would be considered the settlor (see Guaranty Trust Co. of New York v. N.Y. Trust Co., 297 N.Y. 45, 50, 74 N.E.2d 232 [1947] ), the husband avers that the parties had agreed that the apartment would be joint property, and that consistent with that intention, he made certain payments towards maintenance and renovations. The parties' prenuptial agreement is not dispositive of the issue, as it does not list the apartment as the wife's separate property. In addition, it merely defines joint property as that "titled in the joint names of the parties," and in this case the apartment is titled in the name of the invalidated trust. Reformation is an equitable remedy and the parties' intent, as well as any questions of unclean hands, are relevant to the court's determination. These issues must be explored at a hearing. Thus, the wife's cross motion for partial summary judgment was properly denied.

After this action was commenced, the husband moved for an order awarding him temporary spousal support. The wife opposed the motion arguing, inter alia, that the parties' prenuptial agreement contains

27 N.Y.S.3d 544

a waiver of maintenance, both temporary and final. The court granted the husband's motion and awarded him interim support, finding that the agreement did not contain the statutory language for waiving temporary maintenance, purportedly required by Domestic Relations Law former § 236B(5–a)(f).

The motion court improperly granted the husband's application for temporary maintenance. At the outset, the court should not have applied the requirements of Domestic Relations Law former § 236B(5–a)(f) to the parties' prenuptial agreement. That subdivision, which mandated the inclusion of certain language about temporary maintenance, is not applicable because the parties' prenuptial agreement was entered into prior to the effective date of this statutory provision.

New York has a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, including prenuptial agreements" (Matter of Greiff, 92 N.Y.2d 341, 344, 680 N.Y.S.2d 894, 703 N.E.2d 752 [1998] ). "Duly executed prenuptial agreements are accorded the same presumption of legality as any other contract" (

137 A.D.3d 585

Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950 [2001] ), and like all contracts, "are construed in accord with the parties' intent, which is generally gleaned from what is expressed in their writing" (Van Kipnis v. Van Kipnis, 11 N.Y.3d 573, 577, 872 N.Y.S.2d 426, 900 N.E.2d 977 [2008] ). Thus, a waiver of temporary maintenance will be enforced as long as the parties' intent to do so is "clearly evidenced by the writing" (Strong v. Dubin, 75 A.D.3d 66, 68, 901 N.Y.S.2d 214 [1st Dept.2010] [internal quotation marks omitted] ).

Applying these principles, we find that the broad and expansive language used by the parties in their agreement forecloses the husband from seeking any kind of spousal support, including temporary support. After acknowledging and representing that they are "fully capable of being self supporting," the parties agreed to "waive any and all claims for spousal support and/or maintenance" "both now and in the future." By using the words "any and all," the parties, in this particular agreement, clearly signaled their intention that the waiver would encompass both temporary and final awards of spousal support. And the words "in the future" can only mean any time after the agreement was executed, which necessarily includes when the husband's present motion was made.

Further, in the agreement, the maintenance waiver appears below the heading "MAINTENANCE/SPOUSAL SUPPORT UPON TERMINATION OF MARRIAGE." Under Article I of the agreement, the "termination of the marriage" is "deemed to have occurred," inter alia, "upon commencement or institution of any matrimonial action to dissolve or annul the marriage ... by either party." Thus, by tying the maintenance waiver to the "termination of the marriage," as that term is defined in the agreement, the parties clearly intended the waiver to cover any maintenance request made, as here, after the commencement of a divorce action (see Valente v. Valente, 269 A.D.2d 389, 389–390, 703 N.Y.S.2d 206 [2d Dept.2000] [temporary maintenance foreclosed where the parties, who were separated, agreed to waive maintenance in the event of separation, divorce or annulment]; Clanton v. Clanton, 189 A.D.2d 849, 850, 592 N.Y.S.2d 783 [2d Dept.1993] [denying request for temporary maintenance where the prenuptial agreement renounced all claims "under any circumstances" for maintenance in the event of the "breakup" of the marriage by "separation or otherwise"] ).

27 N.Y.S.3d 545

The parties' failure to use the terms "temporary support" or "interim support" does not warrant a different result. Although the dissent acknowledges that "no particular catechism is required to waive temporary maintenance claims," it nevertheless finds the agreement ambiguous and suggests that the parties may only have intended to waive a final award of maintenance

137 A.D.3d 586

. No fair reading of the agreement supports that conclusion. When read as a whole, the agreement contains no ambiguity as to whether the parties intended to waive temporary maintenance. As noted, the agreement waives "any and all" maintenance claims, "now and in the future." Contrary to the dissent's view, there is nothing imprecise about the phrase " any and all." Indeed, this Court has repeatedly found the use of that phrase to be "clear" (see e.g. Miller v. Miller, 82 A.D.3d 469, 469, 918 N.Y.S.2d 417 [1st Dept.2011] ; Coby Group, LLC v. Kriss, 63 A.D.3d 569, 570, 881 N.Y.S.2d 101 [1st Dept.2009] ; Broadcast News Networks, Inc. v. Loeb & Loeb, LLP, 40 A.D.3d 441, 834 N.Y.S.2d 656 [1st Dept.2007] ). Further, although minimized by the dissent, the agreement explicitly states that the parties are "fully capable of being self supporting," which is another indicia that neither intended to seek any kind of maintenance.

The dissent also discounts the heading above the maintenance waiver that makes clear that the parties intended to waive "any and all" spousal support claims that arise after the initiation of a divorce action, which necessarily includes temporary support. The definition in Article I of "termination of the marriage" shows that the parties, who were both represented by counsel, recognized that there is a difference between the filing of a divorce action and the issuance of a final judgment of divorce. They specifically provided that the agreement's broad maintenance waiver goes into effect upon the initiation of the divorce case, and not when the final judgment is rendered.

The cases relied upon by the dissent are distinguishable. In the prenuptial agreement in Lennox v. Weberman, 109...