Lieberman v. Lieberman

• Decision Date: 10 June 1992
• Citation: Lieberman v. Lieberman, 587 N.Y.S.2d 107, 154 Misc.2d 749 (N.Y. Sup. Ct. 1992)
• Parties: Ira LIEBERMAN, Plaintiff, v. Donna LIEBERMAN, Defendant.
• Court: New York Supreme Court

Page 107

587 N.Y.S.2d 107

154 Misc.2d 749

Ira LIEBERMAN, Plaintiff, v.Donna LIEBERMAN, Defendant.

Supreme Court, New York County IAS 34.

June 10, 1992.

Stanford G. Lotwin, Allan J. Berke, Tenzer, Greenblatt, Fallon & Kaplan, New York City, for plaintiff.

Myra L. Freed, Sherman F. Sosnow, Sosnow & Freed, New York City, for defendant.

PHYLLIS GANGEL-JACOB, Justice.

In this long-pending and much litigated matrimonial action, plaintiff-husband moves for partial summary judgment dismissing defendant-wife's second counterclaim which seeks a judgment which rescinds and vacates in its entirety the premarital agreement which the parties signed in 1980.Defendant-wife's cross-motion which seeks certain discovery, expert fees and counsel fees has been resolved and withdrawn.

Plaintiff contends that an action for rescission of a prenuptial agreement is an equitable remedy which is controlled by a six year statute of limitations (CPLR 213(1)); also that any challenge to the validity of a premarital agreement based on fraud must be brought within six years or within two years after the fraud is, or should have been discovered.

The important question raised, and I believe as yet undecided by our courts is should the statute of limitations be tolled during the marriage because lawsuits between spouses are not favored?The Uniform Premarital Agreement Act, which has not been adopted in New York State, and numerous other authorities answer the question in the affirmative.This court agrees.

The parties to this divorce action entered into a premarital agreement on August 27, 1980.Four days later, on August 31, 1980, they were married.A child was born in September of 1983.Plaintiff moved out of the marital home on or about March 1, 1988, and commenced this action for divorce in December 1988.Defendant's June 13, 1989 answer to plaintiff's complaint essentially denies the allegations and seeks a judgment dismissing the complaint or, in the alternative, equitable distribution, maintenance, child support, joint custody and other relief.An amended answer dated February 12, 1990 interposes two counterclaims.The first seeks a judgment of divorce in favor of defendant on the ground of plaintiff's abandonment of defendant on or about March 1, 1988.The second seeks a judgment declaring the premarital agreement null and void.

On the basis that an antenuptial agreement is a contract governed by the six year statute of limitations applicable to contract actions contained in CPLR 213(2), and that actions in equity (e.g., rescission) are governed by the omnibus provision of CPLR 213(1)^*, plaintiff asserts that as a matter of law partial summary judgment should be granted dismissing defendant's second counterclaim as barred by the six year statute of limitations contained in CPLR 213.Plaintiff relies upon the proposition that defendant's right to seek rescission accrued on August 27, 1980 when the premarital agreement was fully executed by the parties(Pacchiana v. Pacchiana, 94 A.D.2d 721, 462 N.Y.S.2d 256).Since defendant's second counterclaim was not brought until 1990, plaintiff claims that as a matter of law defendant's second counterclaim, brought nine and one half years after her cause of action accrued, is time barred.

Plaintiff further contends that defendant has not pleaded any material facts that would operate to toll the statute.Distilled to its essence, plaintiff's argument is that any challenge to the validity of the premarital agreement on fraud grounds is time barred because (1) any facts related to allegations of fraud were sufficiently available to defendant more than two years prior to the assertion of her counterclaim (see, CPLR 213[8], 203[f], and (2) any constructive fraud that might be alleged is likewise barred because any such claim is governed by the six year statute applicable to equity actions in general (CPLR 213[1] and is deemed to have accrued upon the commission of such fraud (the signing of the premarital agreement, which occurred more than six years ago) rather than the discovery of the fraud.Further, that there exist no grounds upon which the statute could be tolled by reason of defendant's insanity or overall inability to function in society or by reason of duress since, these conditions either did not exist or did not continue to exist once the premarital agreement was signed or the parties married, more than six years ago.

There is no question that a premarital agreement is a contract (Matter of Lemle, 30 A.D.2d 785, 291 N.Y.S.2d 443[1st Dept.1968] and that an action for rescission is governed by the "residual" provision of CPLR 213[1](see, Siegel, New York Practice[2d ed.], section 36, p. 42).Plaintiff's counsel correctly recognizes that the controlling issue is the time when defendant's right to seek rescission of the premarital agreement began to run against her right to bring her cause of action.However, it is at this point where plaintiff's argument parts company with the principles embodied in the long established public policy of this and other jurisdictions concerning marital relationships.Based primarily upon principles generally applicable to commercial and other arms-length transactions, plaintiff makes the blanket assumption that defendant's cause of action accrued and the statute began to run, unless otherwise tolled by the limited factors enumerated, upon execution of the premarital agreement.

Here, the parties had what appears to be a viable marriage from August 31, 1980 until on or about March 1, 1988.They lived together as husband and wife during this time and had a child in September 1983.On these facts, applying plaintiff's view of the law, defendant would be compelled, while the parties were still living together as husband and wife in an ongoing marital relationship and before the child of the marriage was even three years old, to review and challenge the premarital agreement or lose that right forever, whether or not such a challenge would damage or more likely destroy, the marital relationship.Such a requirement would encourage law suits between spouses, dissention and perhaps destruction of the marriage rather than enhancement of the marital relationship and would surely be repugnant to the public policy of this state.

In New York, as in most other jurisdictions, there has been an unerring policy to preserve the marital relationship, and those actions that tend to encourage the alteration or dissolution of a marriage are disapproved in the law (e.g., Stahl v. Stahl, 221 N.Y.S.2d 931, 939[Sup.Ct.NY Co.1961], modified on other grounds, 16 A.D.2d 467, 228 N.Y.S.2d 724[1st Dept.1962];Kessler v. Kessler, NYLJ, 9/22/89, p. 24 col. 6 [Sup.Ct. Kings Co.];Matter of Fleischmann, 64 Misc.2d 924, 316 N.Y.S.2d 272[Surr.Ct. NY Co.1970];see, also, Matter of Wilson, 66 A.D.2d 893, 411 N.Y.S.2d 685[2d Dept.1978], affd., 50 N.Y.2d 59, 427 N.Y.S.2d 977, 405 N.E.2d 220;cf., Garlock v. Garlock, 279 N.Y. 337, 18 N.E.2d 521[1939].This policy has found expression by the State Legislature in the enactment of General Obligations Law section 5-311 which (except for separation or settlement agreements reached at a time when a marriage is no longer viable) declares void any agreement between a husband and wife which, by its terms, requires the dissolution of the marriage or provides for the procurement of grounds for divorce, see, Domestic Relations Law section 236; cf., 2 Lindey, Separation Agreements and Antenuptial Contracts [rev. ed.], section 36.01, 1992 Supp.p. 33["Spouses who separate with the intent to divorce no longer occupy a position of trust."].

In Zuch v. Zuch, 117 A.D.2d 397, 503 N.Y.S.2d 343(1st Dept.1986), an action for divorce in which the wife sought to impress a constructive trust with respect to the marital residence, the trial court determined that the cause of action was barred by a six year statute of limitations.Writing for a unanimous court, the Honorable Bentley Kassal said:

"We ... disagree....Such a holding would require a spouse to take affirmative action to preserve claims to potential marital assets even before there had been any hint of marital discord.That flies in the face of logic and would be against public policy....This would critically undermine the underlying purpose of the equitable distribution statute and the vitality of marriages generally."

Premarital agreements fairly reached generally are favored in the law "as conducive to the welfare of the parties and the marriage relationship as they tend to prevent strife, secure peace, adjust, settle and generally dispose of rights in property, controversy over which is regarded as one of the most prolific sources of marital discontent and rupture of the bonds of matrimony"(2 Williston on Contracts, section 270B, p. 160).

While agreements between spouses are deemed to be contractual in nature, because of the status and relationship of the parties such contracts require the utmost good faith and are subject to rigid scrutiny concerning the fairness and propriety of their negotiation and execution (see, Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849[1977];cf., Domestic Relations Law section 236B[3].This is equally true of premarital agreements (e.g., Matter of Phillips, 293 N.Y. 483, 491, 58 N.E.2d 504[1944];Matter of Sunshine, 51 A.D.2d 326, 381 N.Y.S.2d 260[1st Dept.1976]."The parties[to an antenuptial agreement] do not stand at arm's length to each other; theirs is a relationship of the highest trust and confidence and these considerations will govern the determination of their rights thereunder"(2 Williston on Contracts, supra, p. 161).

Thus New York courts traditionally have recognized that premarital and other marital agreements must be viewed differently from other types of contracts in which the parties are strangers to each other (see, Christian v. Christian, supra, 42 N.Y.2d at 65, 396 N.Y.S.2d 817, 365 N.E.2d 849;...