Bloomfield v. Bloomfield
| Decision Date | 22 March 2001 |
| Citation | 723 N.Y.S.2d 143 |
| Parties | (A.D. 1 Dept. 2001) Marshall Bloomfield, Plaintiff-Appellant, v. Barbara Bloomfield, Defendant-Respondent. 1274 : FIRST JUDICIAL DEPARTMENT |
| Court | New York Supreme Court — Appellate Division |
Helene Brezinsky - for plaintiff-appellant,
Donald Frank - for defendant-respondent.
Rosenberger, J.P., Mazzarelli, Ellerin, Lerner, Friedman, JJ.
Order, Supreme Court, Bronx County (Judith Gische, J.), entered on or about November 5, 1999, which held unenforceable the parties' prenuptial agreement and directed plaintiff to pay $40,000 in counsel fees, $5,000 in accountant fees, and $20,000 in appraisal fees, affirmed, without costs.
Marshall and Barbara Bloomfield separated in January 1995, after 25 years of marriage. Two of their three children had reached majority; the youngest was 20 years of age. Marshall initiated divorce proceedings in August 1995. Barbara answered and counterclaimed, demanding, inter alia, equitable distribution. Discovery proceeded. In September 1997, a preliminary conference order was issued indicating that equitable distribution issues were outstanding and unresolved, and that Marshall intended to rely on a prenuptial agreement as a defense.
At the time they were married, Marshall was about 30 years old, a practicing attorney, and the son of a practicing attorney who was involved in real estate and owned various properties and who placed real estate properties in Marshall's name. Barbara was 24 and had finished one year of college. Before the wedding in May 1969, Marshall asked Barbara to sign a document in which she waived certain property and elective rights. Barbara claims they were alone in her apartment; Marshall claims they were at his father's office with a notary present. In any event, Barbara was not represented by counsel in the negotiating, drafting or signing of the document, and she signed it.
The document reads, in toto:
I, BARBARA FRIEDLANDER, in order to induce MARSHALL E. BLOOMFIELD, to marry me, and for the consideration of a Lady's Wedding Ring, the receipt of which is hereby acknowledged, (which I have had appraised by Marcus & Co., Inc., located in Gimbel Bros., 33rd Street in New York City, Invoice No. 69630) appraised at the value of one-thousand and six-hundred dollars ($1,600.00), and for the consideration of Marshall's promise to maintain a life insurance policy on his life payable to me upon his death (should he die before me) in the amount of ten-thousand dollars ($10,000), and for other good and valuable consideration, do hereby WAIVE AND RENOUNCE ANY AND ALL RIGHTS that, and to which, I would otherwise be entitled to because of such marriage, whether present or future rights, to any and all property which Marshall has now, or which he may acquire in the future, whether the same be real, personal, [or] mixed property, or of any kind or nature and wherever situated, and I do further expressly WAIVE THE RIGHT OF ELECTION to take, or to make any demand for, contrary to the provisions of Marshall's last will and testament, pursuant to the provisions of § 5-1.1 of the Estates, Powers and Trusts Law of the State of New York, as said section now exists or may hereafter be amended.
I understand the meaning of the above, and I make each and every statement contained in this agreement of my own free will and accord. Copy received.
The initial provision of the agreement, which is a completely separate and discrete proviso, states: "I... do hereby WAIVE AND RENOUNCE ANY AND ALL RIGHTS that, and to which, I would otherwise be entitled to because of such marriage, whether present or future rights, to any and all property which Marshall has now, or which he may acquire in the future, whether the same be real, personal, [or] mixed property, or of any kind or nature and wherever situated..." Significantly, this is followed by a separate and discrete provision that states: "And I do further expressly WAIVE THE RIGHT OF ELECTION to take, or to make any demand for, contrary to the provisions of Marshall's last will and testament..." (emphasis added)
Since in 1969, when the agreement was executed, a wife had no rights in or to her husband's property apart from the right to support, Or alimony, the only right that could possibly have been referred to in this waiver was Barbara's right to support upon termination of the marriage. It is basic contract law that every provision of an agreement must be given effect (Muzak Corp. v Hotel Taft Corp., 1 N.Y.2d 42). At the time the agreement was entered into, however, the General Obligations Law prohibited a wife from waiving her right to support (§ 5-311 []), and an agreement that sought to do so was void (see, Slocum v Slocum, 42 A.D.2d 56).Thus, the agreement here is void on this ground alone, as Supreme Court (Judith Gische, J.) correctly held.
Marshall construes the first provision in the agreement, which he acknowledges was a "waiver of non-existent distribution rights," as being "merely prophylactic" and not waiving "any current property rights, but only the right to receive a distribution if there were any subsequent changes in the law." This was prescient indeed on his part, in hindsight, since some 11 years later the Legislature enacted the Equitable Distribution Law, which reformed the guidelines for distribution of property upon the dissolution of a marriage in accordance with the principles of economic partnership rather than outmoded gender-based distinctions (Domestic Relations Law § 236 Part B). However, in 1969, a wife's waiver of "any and all rights that, and to which, I would otherwise be entitled to because of such marriage, whether present or future rights, necessarily encompassed her right to alimony. The agreement must be read in the context of the economic disparities that generally prevailed between husbands and wives at the time the agreement was entered into and the import of the law in response thereto as it existed at the time it was signed by Barbara in 1969. Indeed, the parties here presented just such an example. It is clear, therefore, that at that time, the only meaning that could be attributed to the first provision is that it purports impermissibly to relieve Marshall of his obligation to support Barbara and it is therefore void on its face.
The dissent's reliance on Roos v Roos (206 A.D.2d 293) is misplaced. In that case, the agreement between the parties made specific dispositions of the parties' respective substantial property rights and, most significantly, included an express provision for an agreed upon amount of support to the wife (id., p. 295 and Trial Court's decision 10/26/93, Index #4689/91).The instant agreement, of course, contains no comparable proviso and the first of its two provisions can only be construed as a waiver of support.
Supreme Court correctly rejected Marshall's argument that Barbara is time-barred from challenging the 1969 agreement, because the Statute of Limitations is no defense to her claim that the agreement was void and of no effect at its inception (Pacchiana v Pacchiana, 94 A.D.2d 721, appeal dismissed, 60 N.Y.2d 586).
The Statute of Limitations does not apply in the case of an agreement void on its face (Clermont v Clermont, 198 A.D.2d 631 lv dismissed, 83 N.Y.2d 953), as is here the case. Even were it to be concluded that the agreement was voidable, at the very least we would find that the Statute of Limitations for a challenge to a prenuptial agreement is tolled during the marriage. In Lieberman v Lieberman (154 Misc.2d 749), it was cogently held that, in view of the public policy of this State with respect to the marital relationship, the statute must be tolled until the parties physically separate, until an action for divorce or separation is commenced, or until the death of one of the parties. The result otherwise is the "anomalous" requirement that, irrespective of the viability of the marriage relationship, the husband and wife must assume adversarial positions as to their prenuptial agreement within the first six years of their marriage or forever lose their right to challenge the agreement (id. at 753-54). Such a requirement "flies in the face of logic and would be against public policy" since it "would critically undermine ... the vitality of marriages generally" (Zuch v Zuch, 117 A.D.2d 397, 404-05).
Although unnecessary to our determination herein, it also appears that the agreement could be held unconscionable.
An unconscionable bargain has come to be defined as one "'such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other,' (Hume v United States, 132 U.S. 406, 411), the inequality being'so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense' (Mandel v Liebman, 303 N.Y. 88, 94)" (Christian v Christian, 42 N.Y.2d 63, 71). This prenuptial agreement, which provides for no division of property at the end of the marriage, without regard for when, how or why it ends, and absolutely no right of election, is manifestly unfair (see, Clermont v Clermont, 198 A.D.2d 631, lv dismissed 83 N.Y.2d 953; see also, Tartaglia v Tartaglia, 260 A.D.2d 628; Weinstock v Weinstock, 167 A.D.2d 394, lv denied 86 N.Y.2d 705; Yuda v Yuda, 143 A.D.2d 657; Bartlett v Bartlett, 84 A.D.2d 800; Stern v Stern, 63 A.D.2d 700, lv dismissed 45 N.Y.2d 712). No rational person would agree to this arrangement and no fair and honest person would accept it Clermont, supra, at 633). Equity must intervene to prevent an injustice (see, Christian, supra, at 71).
All concur except Friedman, J. who dissents in a Memorandum as follows:
On this appeal we are asked to determine the validity of a prenuptial agreement executed in 1969 by defendant Barbara Bloomfield. The majority concludes that the agreement is...
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