M.M. v. D.M.

• Decision Date: 23 February 2018
• Docket Number: XXXXX/XXXX
• Citation: 2018 NY Slip Op 50447 (U)
• Parties: M.M., Plaintiff, v. D.M., Defendant.
• Court: New York Supreme Court

2018 NY Slip Op 50447(U)

M.M., Plaintiff,
v.
D.M., Defendant.

XXXXX/XXXX

Supreme Court, Kings County

Decided on February 23, 2018

Attorney for the plaintiff, M.M:

Wayne P. Stix, Esq.

333 Westchester Avenue — East Building

White Plains, NY 10604

(914) 285-1822

Attorney for the defendant, D.M.:

Walter J. Roesch, IV, Esq.

Goldberg & Cohn, LLP

16 Court Street, Suite 2304

Brooklyn, NY 11241

(718) 875-2400

Delores J. Thomas, J.

The following papers numbered 1 to 9 read herein:

Papers Numbered

Order to Show Cause/Cross Motion and Affidavits (Affirmations) Annexed 1, 2, 4

Answering Affidavits (Affirmations) 3, 5-7

Transcript of January 12, 2017 Oral Argument 8

Premarital Agreement dated February 20, 2004 9

Upon the foregoing cited papers, in this matrimonial action, the decision/order on these motions is as follows:

Defendant-Wife D.M. ("Wife") moves by order to show cause, for an order, pendente lite: (1) setting aside the parties' prenuptial agreement dated February 20, 2004; (2) directing Plaintiff-Husband M.M. ("Husband") to produce discovery pursuant to the notice for discovery and

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inspection and the demand for answers to interrogatories; (3) directing Husband to produce a statement of net worth pursuant to Domestic Relations Law ("DRL") § 236 and 22 NYCRR § 202.16,¹ (4) granting Wife an award of $4,450 per month as temporary maintenance, pursuant to DRL § 236 (B) (5-a); (5) directing Husband to return all funds to the parties' joint bank accounts, and to restore the parties' economic position to the status quo ante; (6) directing Husband to return Wife's personal property; (7) directing Husband to reopen all credit lines in the same amounts as they were before the commencement of this action; (8) granting Wife counsel fees, pursuant to DRL § 237 (a), in the amount of $25,000, with leave to reapply as necessary; and (9) directing Husband to deposit $25,000 into an escrow account maintained by Wife's attorneys, Goldberg & Cohn LLP ("Goldberg & Cohn"), for Wife's benefit, to pay for the valuation and appraisal of marital property by court-ordered appraisers (motion sequence no. 1).

Husband cross moves for an order: (1) denying Wife's motion for pendente lite relief pending this court's determination of the validity of the prenuptial agreement; (2) limiting discovery to issues relating to the validity of the prenuptial agreement; and (3) directing Wife to refrain from (a) acts of violence towards Husband, (b) insulting and verbally attacking Husband, and (c) screaming in the presence of the parties' children (motion sequence no. 2).

While those motions were sub judice, Wife moved by order to show cause seeking an order: (1) preliminarily enjoining Husband, or the legal entities that he has an interest in, from evicting Wife from the marital residence; (2) granting child support in an amount of $12,500 per month, retroactive to February 25, 2016; (3) permitting Wife to supplement motion sequence number one with the parties' 2015 tax returns; (4) striking Husband's statement of net worth dated April 28, 2016; (5) sanctioning Husband in the amount of $2,500 in counsel fees; (6) requiring Husband to service all of the parties' outstanding debt;² and (7) granting Wife interim counsel fees pursuant to DRL § 237 (a) in the amount of $35,000, with leave to reapply as necessary (motion sequence no. 3). Husband and Artmar Management LLC ("Artmar Management") oppose this motion.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married on February 21, 2004 in a religious ceremony in Greenlawn, New York. There are two children of the marriage, now thirteen and eleven years old, and no other children are expected.³

The parties executed a prenuptial agreement on February 20, 2004 at the Law Offices of Donald T. Rave. During the negotiations and execution of the prenuptial agreement, Husband was represented by Sanford B. Glatzer, Esq. from the office of Sanford B. Glatzer and Associates. Wife was represented by Donald T. Rave, Esq. from the Law Offices of Donald T. Rave.

The agreement's recitals set forth, in relevant part,

"each [party] desires to set forth and define their rights with respect to each other and to release, now and hereafter, specific marital property rights in the property earnings and

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estate of the other, which except for the operation of this [a]greement, each might acquire in the property, earnings and estate of the other as an incident of their contemplated marriage, whether the acquisition of such property, earnings and estate is prior to or during marriage; each party desires to retain all properties now owned or hereafter acquired as her or his sole separate property, together with all rents, income, profits, premiums and increases in value related thereto, free of the ownership, control, or management of the other, and free of any and all claims of the other, and free of any and all claims of the others creditors, heirs, and assigns."

The prenuptial agreement contains mutual waivers of each party's statutory right to receive temporary and permanent spousal support, maintenance, alimony, and equitable distribution. The agreement further states that all assets listed in the annexed schedules are to remain the separate property of its respective owner. Any accrued interest, appreciation, or property substituted for the original assets in the annexed schedules are to be excluded from equitable distribution and after-acquired property.

Schedule A annexed to the agreement lists the following as Wife's separate assets as of January 1, 2004: one wedding band, anticipated; two diamond engagement rings; two diamond cross pendants; one tennis bracelet; one Rolex watch; one Movado watch; one snowflake pendant; one snowflake ring; one pair of baguette-cut earrings; one diamond necklace; two Greek key necklaces, one with diamonds; one omega necklace with diamond and onyx pendant; three bangle bracelets; a 1996 T-Bird automobile; a Roslyn savings account, worth approximately $500; a checking account, worth approximately $500; and savings bonds, "face amount approximately $8,000." Schedule B lists the following as Husband's separate assets as of January 1, 2004: a ten percent (10%) interest in MARTEM 1 Realty Co., LLC, valued at $265,000; an eighteen percent (18%) interest in Volmar Services Inc., valued at $630,000; and a sixteen percent (16%) interest in Volmar Realty, valued at $320,000. Husband's Schedule B indicates that he did not have securities, life insurance, or automobiles. Schedule B also states that Husband had nominal cash and his personal liabilities were "none or nominal."

The agreement states, "the contribution to the expense for the use or enjoyment of any separate property of the other party shall create no claim to such property in the event of the cessation of the marriage." Pursuant to Article XII, "any separate property of either party shall remain such party's separate property, regardless of the source of funds for the maintenance of such property, or the fact that each of the parties contribute funds in satisfaction of any expenses incurred for the utilization and enjoyment of such property."

The parties are directed under the agreement to "establish a bank account in both parties' names, to which all monies will be deposited, and from which the ordinary and necessary living expenses of the parties will be paid for a principal residence or a successor home." Upon the commencement of a divorce action, any non-titled personal property purchased during the marriage using funds in the parties' joint bank account would be divided by agreement of the parties or, in the absence of such an agreement, within 30 days of the commencement of an action.

With regards to child support, the agreement directs that any child support obligation shall be determined by the applicable child support guidelines, but in no event shall a total support obligation be less than $5,000 per month until the youngest child attains the age of 18 years old. Husband is "responsible for all educational expenses including college, and graduate school attended by the children. The choice of schools shall be made by mutual consent of [the parties]."

Under the title "attorney's fees," the agreement provides that in the event suit is brought or

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an attorney is retained "to enforce the terms of this Agreement or to collect any monies due hereunder, or to collect money damages for breach hereof" the prevailing party shall recover reasonable attorney's fees, court costs, and related expenses incurred.

During the marriage, the parties negotiated drafts of a postnuptial agreement; however, a postnuptial agreement was never executed.

Husband commenced this action by filing a summons with verified complaint on February 19, 2016. Husband's verified complaint seeks a divorce on the ground of irretrievable breakdown of the marriage, pursuant to DRL § 170 (7) and on the ground of cruel and inhuman treatment of the Husband by the Wife, pursuant to DRL § 170 (1). On March 16, 2016, Wife filed a verified answer and counterclaim alleging, as her affirmative defenses, that the prenuptial agreement was procured under duress or as a result of overreaching or other inequitable conduct, and was unconscionable and manifestly unfair. Her counterclaim seeks a divorce on the ground of irretrievable breakdown of the marriage and ancillary relief. Simultaneously with service of her verified answer and counterclaims Wife served her first notice of discovery and inspection and first set of interrogatories.

On April 5, 2016, Wife filed a request for judicial intervention and a motion to set aside the prenuptial agreement and for interim support (motion sequence no. 1). The parties first appeared before the court on May 5, 2016 for a preliminary conference ("PC"). At the PC, Husband was represented by Wayne P. Stix, Esq. ("Mr. Stix"). Wife was represented by Walter J. Roesch IV, Esq. ("Mr. Roesch") from the office of Goldberg & Cohn. The parties...