In re Kamil
| Decision Date | 10 July 2020 |
| Docket Number | No. 2018-0700,2018-0700 |
| Citation | 173 N.H. 424,242 A.3d 801 |
| Parties | In the MATTER OF Matthew KAMIL and Robin Kamil |
| Court | New Hampshire Supreme Court |
Law Offices of F. Michael Keefe, PLLC, of Manchester (F. Michael Keefe on the brief and orally), for the petitioner.
Soule, Leslie, Kidder, Sayward & Loughman, PLLC, of Salem (David W. Sayward on the brief and orally), for the respondent.
The petitioner, Matthew Kamil (Husband), appeals, and the respondent, Robin Kamil (Wife), cross-appeals, various orders of the Circuit Court (Foley, J.) in their divorce action. We affirm in part, reverse in part, vacate in part, and remand.
The trial court found the following facts. The parties were married in September 2007 and have two children. Husband filed for divorce on February 17, 2015, and Wife cross-petitioned. On April 6, 2015, Husband was awarded temporary primary residential responsibility for the children and Wife was awarded supervised visitation. The court also appointed a parenting coordinator.
The parties "agreed to participate in a Child Centered Family Systems Evaluation performed by Dr. Ben Garber" and later "agreed to accept Dr. Garber's findings and recommendations." Accordingly, a plan was developed "to follow Dr. Garber's guided therapeutic path" (the Garber Plan). By March 31, 2017, however, "the parenting evidence was that [Wife] was not allowing the therapeutic reunification plan to succeed."
The court nevertheless continued to order supervised visitation for Wife at a visitation center, and, on January 30, 2018, the court "appointed Tracey Tucker to serve in an evaluative, structured, scripted reunification capacity, focusing on the children's needs to have safe and appropriate contact with their mother." After only four sessions, Tucker cancelled the reunification work on May 30, 2018, "when [Wife] made some impulsive and inappropriate comments to [her]." At that point, Wife's supervised contact with the children ended.
Meanwhile, the court held a series of hearings to determine the authenticity and enforceability of a prenuptial agreement executed by the parties approximately one month prior to their wedding. The court ultimately found the prenuptial agreement unenforceable. Alternatively, the court found that even if it had not found the agreement invalid in its entirety, the agreement's waiver-of-maintenance provision was "unconscionable and therefore unenforceable."
On October 31, 2018, the court issued a final divorce decree. After choosing a February 2015 asset valuation date, the court awarded Husband the marital residence, awarded Wife the entirety of her Roth IRA, and equitably divided the remaining assets between them. To effectuate the equitable division, Husband was ordered to pay Wife $1,011,359.88. Additional facts will be recited below as needed to address specific issues raised by the parties.
On appeal, Husband argues that the trial court erred by: (1) invalidating the prenuptial agreement under an erroneous interpretation of New York law; (2) admitting and relying upon Wife's medical records that were incomplete and untimely produced; (3) awarding permanent alimony despite Wife's failure to provide evidence to support such award; (4) ordering him to bear the cost of a therapeutic reunification process for Wife and the children; and (5) ordering him to prepare any qualified domestic relations orders (QDROs) or "other vehicles" necessary to divide the parties’ assets. Wife, on cross-appeal, argues that the trial court erred by: (1) failing to consider, or hold a rehearing to address, the issue of Husband's remainder interest in his parents’ irrevocable trust; (2) failing to award her any of the appreciation to, or interest on, her share of the parties’ financial accounts accruing after the valuation date; (3) failing to award her "statutory interest on her property division share for each day her share is not paid after the date ordered by the trial court"; (4) ordering her to pay one-half of any capital gains taxes incurred by Husband's sale of assets to pay her property division share; (5) denying any parenting time to her; (6) requiring, as a precondition to any visitation with the children, that she "demonstrate to a non-judicial third party's ... satisfaction that she has acquired certain skills"; (7) awarding her only the personal property in her possession at the time of the final divorce decree and failing to award her any personal property located in the marital home; (8) failing to bifurcate the divorce and make its parenting orders temporary; (9) failing to award her an advance on her property division share to cover her legal fees for post-divorce and appellate proceedings; and (10) "failing to make findings or provide a rationale for its orders" on issues she appealed.
We first address Husband's challenge to the trial court's invalidation of the parties’ prenuptial agreement. The agreement was prepared by Husband's counsel and incorporated minor modifications proposed by Wife's counsel. On August 5, 2007, Husband and Wife went to her counsel's home office in New York where both executed the agreement, despite Wife's counsel's advice to her that she not do so. Wife's counsel witnessed and notarized her signature at that time.
Husband had his signature notarized at his counsel's New York office. Although the notary's acknowledgment bears the date of August 5, 2007, the notary testified that she would not have worked that day as it was a Sunday. She also testified that the handwritten digit "5" in the acknowledgement's date was not in her handwriting. The trial court found that Husband's signature was actually notarized on August 10, 2007, five days after he executed the agreement.
The agreement provides that it is to be governed by New York law. The trial court noted that "[t]here is a valid question as to whether [under New York law] an acknowledgment of a signature needs to be contemporaneous with the signature itself" and observed that, while "there appears to be a circuit split brewing within New York jurisprudence[,] ... the New York Court of Appeals has not explicitly ruled on the issue." The trial court determined that the disagreement among New York courts required it to engage in statutory interpretation and concluded that contemporaneous acknowledgement was required. Husband contends that this was error.
Under New York law, " ‘[a]n agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.’ " Galetta v. Galetta, 21 N.Y.3d 186, 969 N.Y.S.2d 826, 991 N.E.2d 684, 687 (2013) (quoting § 236(B)(3) of the New York Domestic Relations Law ). Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209, 681 N.E.2d 376, 379 (1997) (citation omitted).
The New York Court of Appeals has observed that the applicable statute "recognizes no exception to the requirement of formal acknowledgment" and has therefore held that "the requisite formality" so specified "is essential." Id. 659 N.Y.S.2d 209, 681 N.E.2d at 378. Accordingly, the Matisoff Court further held that "an unacknowledged agreement is invalid and unenforceable in a matrimonial action." Id. 659 N.Y.S.2d 209, 681 N.E.2d at 381.
The trial court here essentially ruled that because the acknowledgment of Husband's signature did not occur at the time he executed the agreement, the parties’ prenuptial agreement was effectively unacknowledged and, therefore, invalid. Accordingly, the issue before us is whether the signing of a document must occur in the presence of a notary in order for the notary's acknowledgment of the signature to be valid under New York law. Our task is to apply New York law as interpreted by that state's highest court, and, in the absence of a definitive ruling by that court, to predict how it would rule if it were faced with the issue before us. See Fantis Foods v. North River Ins., 332 N.J.Super. 250, 753 A.2d 176, 183 (App. Div. 2000) ().
The trial court correctly observed that New York's highest court has not directly ruled on the issue before us. The court in Matisoff noted the issue, observing that the applicable statutes "do not specify when the requisite acknowledgment must be made" and that "[i]t is therefore unclear whether acknowledgment must be contemporaneous with the signing of the agreement." Id. 659 N.Y.S.2d 209, 681 N.E.2d at 381. The court did not have to resolve the issue, however, because the postnuptial agreement in Matisoff was never acknowledged by a notary; rather, the defendant sought to cure the lack of acknowledgment through "plaintiff's ‘oral acknowledgment’ at trial that the parties signed the agreement." Id. 659 N.Y.S.2d 209, 681 N.E.2d at 379, 381.
The Court of Appeals again addressed the requisites of a valid acknowledgment in Galetta, where the prenuptial agreement at issue bore an acknowledgment that the court held to be defective. Galetta, 969 N.Y.S.2d 826, 991 N.E.2d at 686, 689. There, the court explained:
Three provisions of the Real Property Law must be read together to discern the requisites of a proper acknowledgment. Real Property Law § 292 requires that the party signing...
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In re Kamil
...with any proceeds from the sale exceeding the husband's initial investment in the property divided equally between the parties. We affirm. In Kamil, on appeal from the parties' final decree, we reversed the trial court's determination that the prenuptial agreement was unenforceable, vacated......