Filstein v. Bromberg

Decision Date09 April 2012
Citation944 N.Y.S.2d 692,36 Misc.3d 404,2012 N.Y. Slip Op. 22090
PartiesMark FILSTEIN, Plaintiff, v. Sonia BROMBERG, Defendant.
CourtNew York Supreme Court

OPINION TEXT STARTS HERE

Cohen Goldstein Silpe, LLP, New York, for the Plaintiff.

Law Offices of Grinberg & Segal, P.L.L.C., New York, for the Defendant.

MATTHEW F. COOPER, J.

In this motion, brought in the context of an action for divorce that follows an earlier action for separation, the essential question before the court is whether the parties can condition their divorce upon the mercurial nature of the New York City real estate market. In the action for separation, the husband, Mark Filstein, and the wife, Sonia Bromberg, entered into a separation agreement which, among other things, requires them to sell the marital residence before either party may file for divorce. The husband now contends that the provision is void as against public policy and unenforceable. The wife counters that the clause is an enforceable condition precedent because there is no absolute right to divorce. She also argues that if the clause is found void, then the entire separation agreement should be set aside, an outcome which would invalidate financial terms that she feels have proven disadvantageous to her.

Background

The parties were married in 1989. They have one child, who is now emancipated. In 1998, the parties purchased the marital residence, a three-bedroom condominium located on West 23rd Street in Manhattan (“the apartment”). By all accounts the parties' marriage deteriorated after the purchase of the apartment. According to the husband, in 2001 the wife moved out of the apartment. According to the wife, in 2007 the husband changed the locks on the apartment and forced her out. In either case, in October 2007 the wife brought an action for separation. On February 15, 2008, the parties entered into the separation agreement that settled the wife's action for separation. The separation agreement, at Article IV, Paragraph 4(G), provides, in relevant part:

Prior to the sale of the Apartment, (i) the parties' attorneys shall prepare a package of documents for the parties and counsel to sign, pursuant to which the Husband will be able to obtain an uncontested divorce based upon the Wife's having abandoned the Husband more than one year prior to the commencement of this action; and (ii) neither party shall file any papers to obtain a judgment of divorce.

More than four years after the parties entered the separation agreement resolving the 2007 action for separation, the apartment remains unsold and the parties remain married. The husband lives in the apartment with another woman and their three-year-old son. He would like to marry this woman but is unable to do so because he is still married to the wife. The husband attributes this unhappy situation to the wife, who he contends has prevented the sale of the apartment by insisting on inflated selling prices that are out of line with market conditions. By so doing, the husband charges, the wife has been able to use the “no divorce prior to sale” clause of Article IV, Paragraph 4(G) of the separation agreement (“the no-divorce clause”) to keep him locked into a marriage that exists in name only.1

In order to extricate himself from this state of marital limbo, the husband commenced a new action in March 2011. This new action is both an action for divorce and an action for a declaratory judgment determining that the no-divorce clause of the separation agreement is unenforceable. The husband's complaint sets forth three grounds for divorce: abandonment (Domestic Relations Law [“DRL”] § 170[2] ), living separate and apart pursuant to separation agreement (DRL § 170[6] ), and irretrievable breakdown of the marriage (DRL § 170[7] ).

The husband now moves, pursuant to Civil Practice Law and Rules (“CPLR”) § 3212, for partial summary judgment on his cause of action for declaratory judgment. He argues that conditioning the ability to obtain a judgment of divorce on the parties' ability to sell the apartment defies public policy. The husband also moves, pursuant to CPLR § 3211(b), to dismiss the thirteen affirmative defenses raised by the wife in her answer and, pursuant to CPLR § 3211(a)(1) and (7), to dismiss the sixteen counterclaims she has interposed.

The wife opposes both branches of the husband's motion. She also cross-moves for various forms of relief, including the dismissalof the husband's complaint in its entirety, the dismissal specifically of the husband's cause of action for divorce pursuant to DRL § 170(7), a stay of the proceedings, and an award of counsel fees. The basic thrust of the wife's opposition to the husband's attempt to invalidate the no-divorce clause is that the clause is an enforceable contractual provision and that striking it would amount to the court finding that there is an absolute right to divorce. The wife also argues that if the no-divorce clause is held to be unenforceable, then she is entitled to have the entire separation agreement invalidated. This argument is in line with the affirmative defenses that she has asserted and the counterclaims she has interposed, many of which seem to allege in one form or another that the financial terms of the separation agreement, particularly the waiver of spousal maintenance, render the agreement unconscionable.

Analysis
A. The Husband's Motion for Partial Summary Judgment

The first branch of the husband's motion seeks summary judgment on his cause of action for a declaration that the no-divorce clause of Article IV, Paragraph 4(G) of the parties' separation agreement defies the public policy governing divorces in this state by limiting one's ability to obtain a divorce. To determine whether the provision does in fact violate public policy, it is necessary first to ascertain what that public policy is. The starting point for such analysis is to briefly trace the history and development of New York's divorce law.

Between 1787 and 1966, a husband and wife could only divorce if one could prove adultery at trial. Covington v. Walker, 3 N.Y.3d 287, 290–291, 786 N.Y.S.2d 409, 819 N.E.2d 1025 (2004). It was not until 1966 that the Legislature created three additional fault-based grounds for divorce: cruel and inhuman treatment; abandonment for a period of two years; and the defendant's incarceration for at least three consecutive years. SeeDRL § 170(1)-(4). The 1966 reforms also created two nonfault grounds (as opposed to no-fault grounds): living apart pursuant to a judgment of separation for a period of two years and living apart pursuant to a separation agreement for a period of two years. SeeDRL § 170(5)-(6). The purpose underlying these changes was to “recognize grounds for divorce ... as manifestations of dead marriages, marriages that should be terminated for the mutual protection and well being of the parties and, in most instances, of their children.” Covington, 3 N.Y.3d at 290–291, 786 N.Y.S.2d 409, 819 N.E.2d 1025 (citing 1966 Report of Joint Legis. Comm. on Matrimonial & Family Laws to Legislature of State of NY, at 85). The 1966 reforms marked the first time the Legislature began moving away from the idea that a divorce requires an innocent and guilty party.

In the famous case involving the divorce of comedian Jackie Gleason, Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513 (1970), the Court of Appeals held that the two nonfault grounds could be applied retroactively to couples who lived separately before the statute was enacted. The Court wrote:

[S]ince the Legislature was intent on providing nonfault grounds for divorce and sanctioning divorce decrees where the marriage was dead—as attested by the specified two-year separation—it would be anomalous ... to permit judicial termination of marriages which became dead after September 1, 1966, but not those whose demise preceded that date.

Id. at 37–38, 308 N.Y.S.2d 347, 256 N.E.2d 513 (internal quotation marks and citations omitted). The Gleason Court further laid out New York's public policy position:

Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel couples to a dead marriage to retain an illusory and deceptive status and that the best interests not only of the parties but of society itself will be furthered by enabling them “to extricate themselves from a perpetual state of marital limbo.”

Gleason, 26 N.Y.2d at 35, 308 N.Y.S.2d 347, 256 N.E.2d 513 (citing Adelman v. Adelman, 58 Misc.2d 803, 805, 296 N.Y.S.2d 999 [Sup. Ct., Queens County 1969] ).

The Legislature's subsequent amendments further simplifying the ability to obtain a divorce reinforce this position. In 1972, the Legislature reduced the two-year requirements in §§ 170(2), (5) and (6) to one-year, and in 2010 it enacted the grounds of irretrievable breakdown of the marriage, making New York the last state to adopt true no-fault divorce. Using this ground, a party seeking divorce need only swear under oath that the marriage has been irretrievably broken for a period of six months. SeeDRL § 170(7); see also, e.g., Townes v. Coker, 35 Misc.3d 543, 943 N.Y.S.2d 823 (Sup. Ct., Nassau County 2012)(“Thus, once a party has stated under oath that the marriage has been irretrievably broken for a period of at least six months, the cause of action for divorce has been established as a matter of law.”). From this history, it can readily be concluded that the legislative trend over the past fifty years has been to make obtaining a divorce progressively less burdensome.

With this in mind, the next step is to examine how courts, when dealing with agreements purporting to limit the ability of parties to divorce, have applied the public policy favoring the ability of spouses to terminate a marriage. Generally, separation agreements represent the parties' wishes and consensus and should not be overruled lightly. However, in Christian v. Christian, 42 N.Y.2d 63, 65, 72, 396...

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