E.E. v. F.E., xxxxxx

• Decision Date: 23 August 2019
• Docket Number: xxxxxx
• Citation: 64 Misc.3d 1236 (A),118 N.Y.S.3d 365 (Table)
• Parties: E.E., Plaintiff, v. F.E., Defendant.
• Court: New York Supreme Court

64 Misc.3d 1236 (A)
118 N.Y.S.3d 365 (Table)

E.E., Plaintiff,
v.
F.E., Defendant.

xxxxxx

Supreme Court, New York County, New York.

Decided August 23, 2019

Douglas E. Hoffman, J.

This is not a matrimonial divorce action, but rather a contract action filed by Plaintiff Wife E.E. ("Wife" or "Plaintiff"), while she continues to live with Defendant Husband F.E., ("Husband" or "Defendant") as spouses of almost twenty years. Wife seeks various relief in her action, including the enforcement of certain post-nuptial agreements. In the instant motion, Wife moves for an order (a) directing Husband to pay Wife "pendente lite her monthly stipend in the amount of $35,000 as provided in the parties' Post-Nuptial Agreements"; (b) pursuant to CPLR § 1201 and § 1202, "appointing a guardian ad litem to represent Defendant and his interests in the instant action"; (c) pursuant to CPLR § 2218, "directing an evidentiary hearing with respect to any issue of fact raised on the instant motion"; and (d) requiring Husband to pay Wife's attorneys $75,000 "incurred in connection with the instant application and as required by the parties' [redacted by court], 2009 Post-Nuptial Agreement." Wife alleges that Husband, who is 90 years old, does not pay his expenses himself, but rather, "they are paid by his office and approved by his [adult] children." Wife raises serious issues of whether her needs and her Husband's needs are being properly met.

Husband, by his attorneys, and by an affidavit signed by Husband, opposes the relief sought, at least in part. Defense alleges that the payment requests in this contract action are premature, and that extensive payments have been made on Wife's behalf in the last two years. Defense also asks that "the holder of [Husband's] Power of Attorney, [his] friend [J.K.]¹ ," instead of a new guardian ad litem , provide the role of "effective assistance" in this litigation. After the receipt of a court-ordered evaluation report by Dr. Adam Bloom (discussed below), Husband's attorneys consented on the record that Husband would benefit from assistance in this litigation, but argue that the assistance should be provided by Mr. J.K. as the alleged Power of Attorney, not by any newly appointed guardian ad litem .

Wife, in turn, alleges that Mr. J.K. has conflicts that would prevent him from representing Husband's interests in this action: (i) Mr. J.K. is allegedly a partner in an approximately [over $100 million holding] with either Mr. E. and his adult children from a prior relationship ("A.E. and B.E.") or just with A.E. and B.E. if Mr. E. has already transferred his interest in [holding] to his children; and (ii) Mr. J.K.'s attorney, * * *, is married to Mr. E.'s attorney, * * *. [15/11/19 Wife Aff. at ¶4].

The parties have been married for almost twenty years, Wife is in her early seventies and Husband is ninety years old. Neither spouse is seeking a divorce or any form of dissolution of the marriage, and they continue to live together as spouses. Each spouse has adult children from previous relationships, and there are no children of this marriage. Allegedly, Husband transferred his [holding] ownership interests to his children some years back. Wife alleges that the parties have apparently signed pre- and post-nuptial agreements concerning their extensive marital and separate assets [Ex. I, * * * 2009 Amendment and Restatement of Prenuptial Agreement, the "2009 Agreement"]. For example, the 2009 Agreement, which is attached to the motion, lists various separate or marital real estate properties, some owned directly and some indirectly, including a house in * * *, an apartment in * * *, an apartment in New York City, a building in New York City, plus various bank accounts and business holdings. The 2009 Agreement also provides for Husband's "support obligations" to Wife during the marriage "provided a [defined] Dissolution of the Marriage shall not have occurred," including $25,000 per month plus "all of [Wife's] care, health, and support and maintenance expenses to maintain her in her accustomed standard of living, including without limitation, the expenses associated with the employment of domestic help ... all maintenance and building charges, common charges, utilities, taxes, repairs mortgage payments." 2009 Agreement at 19-20. The 2009 Agreement also provides for payments, including for health and care, in case either spouse becomes incapacitated, although if Husband becomes incapacitated while Wife is not incapacitated, her $25,000 monthly support payments would double, to $600,000 per year, paid in quarterly installments by Husband's then guardian or attorney in fact. (Id. at 21). "Incapacitated" under that 2009 agreement is defined as "the condition of F.E. [or E.E.], as determined by two Qualified Examining Physicians selected by a Designated Person, that F.E. [or E.E.] shall not be able to act prudently or effectively because of accident, physical or mental deterioration or other similar cause, and shall not be able to write or dictate a clear and sensible paragraph, or paragraphs, of one hundred words of more; and any Incapacity shall be deemed to continue until two Qualified Examining Physicians selected by a Designated Person shall determine that F.E. [or E.E.] is able to act prudently and effectively and F.E. [or E.E.] shall be able to write or dictate a clear and sensible paragraph, or paragraphs, of one hundred words of more." [Id. at 3]. E.E. designated * * * as her Designated Person, and F.E. designated * * *, and each spouse retained the right to change the designated person by a signed written instrument. [Id. ] The court notes that even if a CPLR Article 12 guardian ad litem is appointed in this action, that would not be akin to a finding of incapacity pursuant to Mental Hygiene Law Article 81, and the court does not decide this issue herein. The motion requests the appointment of an Article 12 guardian ad litem , not a finding of incapacity, and the court does not read it otherwise. The court also does not find, and it was not asked to find, incapacity as defined in the 2009 Agreement. The 2009 Agreement also provides for division of property in case of dissolution (not relevant here), or after the passing of either spouse, while also meaningfully providing for each spouse's adult children from prior relationships.

Defense stated that Husband signed a Power of Attorney in July 2017 to J.K., and Husband then also signed a May 2018 amendment, which states, in relevant part, that Husband may only remove Mr. J.K. as his Power of Attorney in writing, and in Mr. J.K.'s presence. Defense has also stated that there may be another, September 2014 power of attorney, allegedly provided to another individual, described in that brief as "an employee and close friend," and to an attorney (although not explained whose attorney; 2014 Power of Attorney not attached). [July 2019 brief at 2-3].

Defendant's Verified Answer and Counterclaim, signed by both Husband and his then-attorney, requested that the court set aside the four post-nuptial agreements (entered into in 2005, 2009, and two in 2013) between the parties in favor of their 2001 prenuptial agreement, apparently because of both Wife's undue influence and Husband's failing health since at least 2005, which allegedly rendered him unable to resist her:

[Husband's] failing physical, mental and emotional well-being to render him increasingly dependent upon plaintiff, apprehensive of being left by himself in his declining years and incapable of withstanding the undue influence and overreaching pressures exerted upon him by plaintiff, so that the four unfair, unreasonable "postnuptial agreements" [June 2005, November 2009, two from November 2013] should be declared invalid and unenforceable.... plaintiff's overreaching behavior towards defendant (who is now almost 90 years of age and in declining health), including presently suffering from diabetes type two, kidney dysfunction, sequelliae [sic] of a recent neck fracture due to a fall when ... with plaintiff, balance problems and failing memory issues, rendered defendant increasingly unable since at least June of 2005 to successfully resist and to cope with plaintiff's overreaching and undue influence upon him, such that defendant is entitled to a Declaratory Judgment setting aside the said four purported postnuptial agreements. (September 2018 Verified Answer and Counterclaim.)

Husband's counsel thus states that documents signed by Husband since "at least June of 2005" that allegedly benefit Wife should be set aside due to Husband's failing health and "failing memory issues." Husband's counsel, however, relies on documents signed by Husband in 2017, 2018, and 2019.

Defendant Husband has appeared at numerous court dates, with his attorneys, and he has filed affidavits in this case. J.K., who has Husband's Power of Attorney, has also appeared, along with Mr. J.K.'s counsel. Plaintiff and Defendant have also filed lengthy affidavits and affirmations in a lawsuit before another Justice of this Court, captioned * * * * , where either Wife, Husband, or Husband's children, and these individuals' various businesses may have had opposing or different interests. There was also a lawsuit captioned F.E. v. E.E. , which was previously filed in this Court, possibly by or on behalf of Husband, although he appears to have denied ever authorizing that lawsuit, which was subsequently withdrawn by his attorneys without prejudice. [10/15/18 Wife Aff. at 5; 11/12/18 Affir. of Husband's counsel at 4].

The court also notes that in late 2018, after the start of this case, Husband was protected...