DeMille v. DeMille, 2004 NY Slip Op 24279 (NY 1/5/2005)
| Decision Date | 05 January 2005 |
| Parties | VIRGINIA M. DeMILLE, Plaintiff, v. NELSON R. DeMILLE, Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Philip Sands, Garden City, for plaintiff.
Gassman & Keidel, P.C., Garden City (Stephen Gassman of counsel), for defendant.
There are two motions before the court. The wife moves for an order pursuant to CPLR 2221 granting her leave to renew her motion for partial summary judgment granted by order of this court dated October 24, 2002, reversed by order of the Appellate Division, Second Department, dated March 8, 2004 (5 AD3d 428 [2004]); and upon renewal, granting her partial summary judgment pursuant to CPLR 203 (d) and 3019 (d) dismissing the husband's second counterclaim. The husband moves for an order (1) dismissing the wife's application on the grounds of collateral estoppel and res judicata, and on the further grounds that the application is contrary to the parties' prenuptial agreement and violative of statutory principles and contrary to law; (2) pursuant to 22 NYCRR 130-1.3 imposing financial sanctions against both the wife and her attorney in the sum of $10,000 and costs, by means of a money judgment for legal fees in the sum of $15,000; and (3) pursuant to CPLR 3403 (a) (3) granting an immediate trial preference.
The parties were married on September 17, 1988. There are no children of the marriage. The wife has an emancipated child from a prior marriage, and the husband has two emancipated children from a prior marriage. The wife is 56 and the husband is 59 years old. Prior to the marriage, the husband had obtained a Bachelor's degree from Hofstra University and had five works published, to wit: Rivers of Babylon, Cathedral, Talbot Odyssey, Word of Honor and Charm School. Prior to the marriage, the wife had obtained a Bachelor's and a Master's degree from Ohio State University.
The parties resided together, prior to their marriage, in a home owned by the husband. They signed a prenuptial agreement, dated September 16, 1988, on September 17, 1988.
The wife commenced an action for divorce by filing a summons with notice on August 5, 2002. The summons sets forth notice that she is seeking a divorce and ancillary financial relief including equitable distribution and maintenance. The summons does not set forth that she has a cause of action to set aside a prenuptial agreement. On August 14, 2002, the wife submitted an order to show cause for pendente lite relief for signature to the undersigned Justice. Said order to show cause directed that it be served on the husband simultaneously with the summons with notice. Said order to show cause set forth ex parte provisions requiring the husband to maintain medical and life insurance for the benefit of the wife and restrained him from disposing of assets except in the ordinary course of business or living pending the determination of the application. The papers submitted by the wife in support of her order to show cause did not make any reference to a prenuptial agreement.
By notice of cross motion dated August 27, 2002, the husband moved for an order dismissing the wife's pendente application, and vacating the ex parte directives set forth therein, on the ground that the court was without jurisdiction to grant such relief by virtue of the prenuptial agreement dated September 16, 1988. The husband also moved for an assessment of costs of $10,000 and sanctions of $10,000.
On or about August 27, 2002, the wife served an amended summons with notice incorporating the notice set forth in the original summons dated August 5, 2002, and adding notice of a cause of action to set aside the prenuptial agreement dated September 16, 1988. She served a verified complaint dated September 5, 2002, setting forth third and fourth causes of action seeking judgment setting aside said prenuptial agreement.
In her September 10, 2002 reply to the cross motion, the wife asserted, in relevant part, that the prenuptial agreement in issue was the unconscionable product of the husband's overreaching. By notice of motion, dated September 10, 2002, she moved for partial summary judgment on the third and fourth causes of action set forth in her verified complaint. This notice of motion was served prior to the service of an answer by the husband in contravention of the CPLR 3212 statutory proscription prohibiting such motions prior to joinder of issue.
The husband served a verified answer with counterclaims dated October 2, 2002. Said answer sets forth eight affirmative defenses with regard to the wife's third and fourth causes of action seeking judgment setting aside the prenuptial agreement. Said answer also interposes a counterclaim for divorce and a counterclaim seeking judgment directing the specific performance of the prenuptial agreement.
By notice of cross motion dated October 2, 2002, the husband moved for an order denying the wife's motion for partial summary judgment and for a further order granting him partial summary judgment (1) dismissing the third and fourth causes of action in the wife's complaint, and (2) declaring the prenuptial agreement dated September 16, 1988 to be valid, enforceable and dispositive of the issues of maintenance and equitable distribution. The husband's cross motion for summary judgment on his counterclaim for judgment declaring the validity of the prenuptial agreement was served prior to the service of the wife's reply to his counterclaims, again in contravention of CPLR 3212. His affidavit, sworn to on October 2, 2002, in support of his cross motion and in opposition to the wife's notice of motion for partial summary judgment, and his verified answer assert that the wife's third and fourth causes of action are time-barred by CPLR 213.
The wife served papers, dated October 10, 2002, in opposition to the husband's notice of cross motion for partial summary judgment, and the husband served a reply to his cross motion dated October 17, 2002. The wife did not serve a reply to the husband's counterclaims until on or after October 25, 2002. Said reply denies the allegations of the counterclaims and asserts that the wife is unable to form a belief with regard to the authenticity of the prenuptial agreement.
All four of the above-mentioned motions were submitted to the court on October 18, 2002, prior to the service of the wife's reply to the husband's counterclaims. The reply was not part of the record considered by this court. Neither party's papers submitted on said motions address the issue of the CPLR 3212 prematurity of the husband's cross motion for summary judgment on his second counterclaim. The four motions were decided by an order dated October 24, 2002 wherein the wife was granted summary judgment setting aside the prenuptial agreement dated September 16, 1988 and the husband's cross motions were denied in all respects.
By order dated November 22, 2002, the Appellate Division stayed all proceedings in the trial court pending the determination of an appeal of the order dated October 24, 2002 filed by the husband. Said order conditioned the stay on the requirement that the husband pay the carrying charges on the marital residence, pay the wife the sum of $5,500 a month, and maintain existing life and medical coverage for her benefit.
By order dated March 8, 2004, the Appellate Division (5 AD3d 428 [2004]) reversed the order dated October 24, 2002, and held that the third and fourth causes of action in the wife's complaint were dismissed as time-barred.
The wife now moves the court for an order dismissing the husband's second counterclaim seeking a judgment specifically enforcing the prenuptial agreement dated September 16, 1988. The wife denotes her application as a motion pursuant to CPLR 2221 to renew the husband's cross motion seeking summary judgment on his second counterclaim, decided by the order of this court dated October 24, 2002. The wife contends that as issue had not been joined on the husband's second counterclaim as of the date of the submission of said motion, neither this court nor the Appellate Division had the authority to summarily adjudicate said counterclaim, and that the Appellate Division's order dated March 8, 2004 did not, in fact, summarily determine said counterclaim. She further asserts that the service of the husband's answer, interposing counterclaims for divorce and specific performance of the prenuptial agreement, required her to serve a responsive pleading in defense of said counterclaims; that she would be entitled to rely upon CPLR 203 in defense of said counterclaims; and that as the Appellate Division decision was rendered on a record that did not contain her responsive pleading, it did not summarily grant the husband's second counterclaim, nor did it determine her right to rely on CPLR 203 in said responsive pleading. She further points out that the Appellate Division did not, and could not, address the affirmative defense of lack of authenticity raised in her reply which was not part of the record on appeal.
The husband emphasizes that the wife argued on appeal that pursuant to the Court of Appeals decision in Bloomfield v. Bloomfield (97 NY2d 188 [2001]), a matrimonial litigant, who was either a plaintiff or a defendant, could seek to defend a claim seeking to adjudicate the validity of a prenuptial agreement being asserted to deprive a court of jurisdiction to equitably distribute marital assets. He points to the language of the order dated March 8, 2004 that states that CPLR 203 (d) permits a defendant to assert an otherwise untimely claim, but does not serve to permit a defendant to obtain affirmative relief. He interprets the Appellate Division's order of March 8, 2004 as holding that only a defendant in a matrimonial action can rely on CPLR 203 (d) to seek rescission of a prenuptial agreement and that it is irrelevant that issue had not been joined as to his counterclaims as...
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