Cohen v. Cohen

• Decision Date: 11 September 2014
• Citation: 120 A.D.3d 1060,993 N.Y.S.2d 4,2014 N.Y. Slip Op. 06157
• Court: New York Supreme Court — Appellate Division
• Parties: Stanley COHEN, Plaintiff–Respondent–Appellant, v. Pauline COHEN, Defendant–Appellant–Respondent.

?120 A.D.3d 1060
993 N.Y.S.2d 4
2014 N.Y. Slip Op. 06157

Stanley COHEN, Plaintiff–Respondent–Appellant,
v.
Pauline COHEN, Defendant–Appellant–Respondent.

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

Sept. 11, 2014

Affirmed as modified.

[993 N.Y.S.2d 5]

Wolfson & Carroll, New York (John W. Carroll of counsel), for appellant-respondent.

Law Office of Glenn S. Koopersmith, Garden City (Glenn S. Koopersmith of counsel), for respondent-appellant.

[993 N.Y.S.2d 6]

Schpoont & Cavallo LLP, New York (Sandra L. Schpoont of counsel), attorney for the child.
SWEENY, J.P., RENWICK, ANDRIAS, RICHTER, KAPNICK, JJ.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered May 9, 2013, to the extent appealed from, dissolving the parties' marriage, granting plaintiff physical and legal custody of the parties' child, directing plaintiff to pay defendant non-durational maintenance of $26,000 per month, and directing plaintiff to continue to maintain defendant's two $300,000 life insurance policies and to purchase and maintain a $2.5 million life insurance policy naming defendant as sole beneficiary, unanimously modified, on the law and the facts, to reduce the amount of non-durational maintenance to $22,500 per month and to reduce the amount of life insurance that plaintiff is required to purchase to $1,000,000, and otherwise affirmed, without costs. Appeals from orders, same court and Justice, entered on or about April 16, 2012, May 7, 2012, June 14, 2012, August 14, 2012 and February 5, 2013, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Order, same court (Matthew F. Cooper, J.), entered on or about May 30, 2013, which awarded defendant attorneys' fees in the sum of $175,000, unanimously affirmed, without costs.

Plaintiff husband, now 79, is a United States citizen. In or around 1990, he established, for his security and investment transactions, Scone Investments, a limited partnership in which he is a general partner. In the mid–1990s, he created the Scone Foundation, which provides financial awards and prizes to artists and archivists.

In 1996, while living in France, plaintiff met defendant wife, now 54, and they moved in together. Defendant, a documentary film maker and assistant director, was a citizen of Belgium and France. In 1998, defendant became pregnant and stopped working. On April 30, 1999, plaintiff created the Second Stanley Cohen Irrevocable 1999 Family Trust (1999 Trust), primarily for the benefit of defendant and their issue, although his daughter from a previous marriage is also a beneficiary.

On June 7, 1999, the parties executed a prenuptial agreement in France, which provided that upon marriage, each party's premarital property would remain his or her separate property, that property titled in individual names acquired during the marriage would be the property of the person in whose name it was titled, and that jointly titled property acquired during the marriage would be jointly owned marital property. The parties married on June 14, 1999, and on July 10, 1999, their son was born.

In 2001, Scone Investments purchased two apartments in the Galleria, an apartment building in Manhattan. A third apartment in the building was later purchased. In 2002, the 1999 Trust purchased a 4,000–square–foot apartment in Paris.

During the marriage, the parties moved to the United States. They separated in 2006, but plaintiff continued to provide defendant with financial support. Plaintiff commenced this divorce action in March 2009. In a prior appeal (93 A.D.3d 506, 940 N.Y.S.2d 250 [1st Dept.2012] ), this Court affirmed the order of the trial court that held that the French prenuptial agreement was valid.

After a 2011 on-the-record “agreement” was vacated, the parties proceeded to trial in 2012. The trial was bifurcated, with specific days reserved for testimony regarding custody and other days for testimony about finances. Although defendant was cross-examined during the financial

[993 N.Y.S.2d 7]

phase of the trial, on May 18, 2011, in the midst of her cross-examination on custody issues, she left New York and returned to Paris. The attorney for the child requested that defendant's testimony on custody be stricken because she was not cross-examined. Plaintiff's attorney requested that all of defendant's testimony, including testimony on finances, be stricken. Defendant's counsel asked for time to permit defendant to appear again. The court provided defendant's counsel with an opportunity to explain her absence, and adjourned the trial to June 6, 2012.

Despite the three-week adjournment, defendant did not return to court, claiming that she was under doctor's orders not to travel. The court refused defendant's request for a further adjournment or to allow her to appear via Skype, and ended the trial on June 7, 2013. The court drew an adverse inference against defendant with respect to custody issues based on her failure to complete her cross-examination, but refused to default her or to strike her testimony in its entirety.

On the record before us, the court properly vacated the parties' 2011 on-the-record agreement. To be enforceable, an open court stipulation must contain all of the material terms and evince a clear mutual accord between the parties (see CPLR 2104; Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 286, 785 N.Y.S.2d 738, 819 N.E.2d 206 [2004]; Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 103–104, 890 N.Y.S.2d 16 [1st Dept.2009], lv. denied 15 N.Y.3d 703, 2010 WL 2572017 [2010] ). The 2011 on-the-record agreement was too incomplete and indefinite to be enforceable, and was merely a non-binding agreement to agree ( see Joseph Martin, Jr., Delicatessen v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541 [1981]; Bernstein v. Felske, 143 A.D.2d 863, 865, 533 N.Y.S.2d 538 [2d Dept.1988] ). The parties disagreed whether the proposal included a waiver of maintenance and they did not finalize the details of the transfer of the 1999 Trust. Other material terms were never agreed upon, and the agreement was subject to the consummation of future conditions and additional agreements.

The agreement also lacked consideration ( see Whitmore v. Whitmore, 8 A.D.3d 371, 778 N.Y.S.2d 73 [2nd Dept.2004] ). Accepting defendant's consent to the divorce in exchange for the financial payments would have been against public policy ( see Charap v. Willett, 84 A.D.3d 1003, 925 N.Y.S.2d 94 [2nd Dept.2011] ). In any event, the parties unambiguously agreed that “whether we hammer out the agreement or not, the divorce will go forward uncontested.” There is no merit to defendant's claim that her decision to avoid a public trial on fault grounds constituted consideration because it would have brought up embarrassing and difficult questions for plaintiff concerning his financial dealings.

The court correctly precluded defendant from introducing evidence of...