McKeown v. Frederick

• Decision Date: 18 June 2013
• Docket Number: Index #: 12/5505
• Citation: 2013 NY Slip Op 31281
• Parties: MARYANNE MCKEOWN (FREDERICK), Plaintiff, v. DALE M. FREDERICK, Defendant.
• Court: New York Supreme Court

2013 NY Slip Op 31281

MARYANNE MCKEOWN (FREDERICK), Plaintiff, v. DALE M. FREDERICK, Defendant.

Index #: 12/5505

STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE

DATED: June 18, 2013

DECISION

APPEARANCES:

Rebecca Hatch, Esq.

Hatch Law Firm PLLC

Attorney for Maryanne McKeown , Plaintiff

Frank Beretta, Esq.

Attorney for Defendant

Dollinger, J.

Marriages are formed on a simple, but definite, promise: "I do." Innumerable statutory rights and responsibilities originate in that promise. In this case, the court explores whether other alleged promises made by a spouse, prior to marriage, create concomitant common law property rights and responsibilities under the equitable doctrine of a constructive trust.

The couple met in March 2010 and became engaged on New Year's Eve of that year. The husband contends that before marriage, the parties discussed buying a house together, but demurred. Instead, prior to the marriage, he moved into the wife's home.The wife owned the home in her name. The husband states that the parties mutually agreed to "make this house our home." He further alleges that the wife, prior to the marriage, suggested that she would add the husband to the deed.

On or about the time these statements were allegedly made, the husband moved in with his soon-to-be wife. The wife's two children from a prior marriage were already residing in the house. To accommodate the expanding "family," the husband claims that he invested what he alleges to be $23,000, and then $900 for furnishings in the basement of the home. The husband further alleges that he "expended" in excess of $2,500 for hardwood floors, $5,900 in landscaping, $1,000 in furnace and plumbing repairs, and paid "all the routine expenses" on the house. The husband does not specify when these expenses were incurred, other than they were made after he moved in on August 29, 2011.

The husband asserts that there was a confidential relationship at the time of his work and expenditures, an actual and implied promise by the wife to him that he would "share in the benefits of improvements to the marital residence." He asserts that he expended significant sums in reliance on that promise and that the promise was breached by the wife's "actual and constructive conduct . . . in rendering cohabitation untenable."

The wife's version of the facts differs in some regards and has more specific details. She makes no reference to any promises to the husband prior to him relocating into her home. She admits that the couple surveyed other properties, but they eventually focused instead on the wife's home. The wife, in a statement uncontradicted by the husband, alleges that the husband moved into the house on August 29, 2011. The couple were thenmarried on October 14, 2011. Shortly thereafter, the married dissolved and the husband moved out permanently in March 2012. Importantly, the wife makes no statement regarding when the improvements were made.

After the husband moved out, the wife commenced an action for divorce. The husband answered, denying the substantive allegations and asserting, as a counterclaim, a claim for a constructive trust. The husband alleged that:

(A) he expended approximately $36,000 in "separate property funds" in improvements to the plaintiff's property both prior to and subsequent to the marriage;

(B) such expenditures were made upon "the expressed and implied promises by the wife that the parties would share the said residence, including, without limitation, substantial improvements thereto, as their principal residence, thereby inducing defendant to believe that he would share in the profits and/or use and enjoyment of said residence;"

(C) "the intent evidenced by both parties constitutes a mutual promise of a joint venture for the benefit of both parties" and, that a confidential relationship existed between the parties as the parties had, from the time they first commenced cohabitation in August 2011, anticipated marriage and were subsequently married; and,

(D) the wife had "been unjustly enriched thereby."

After negotiations, the parties agreed that the court would sever the constructive trust counterclaim and allow the divorce matter to proceed. The parties negotiated a settlement agreement. The court severed the counterclaim and a judgment of divorce was entered. The judgment provided that the husband's cause of action "for the imposition of a constructive trust be and the same is severed from the within action for divorce and preserved for further proceedings." The parties, after a conference, agreed that the counterclaim would be the subject of motion practice by the wife to determine if the husband could sustain a claim for constructive trust.¹

The wife then moved for summary judgment to dismiss the constructive trust claim. CPLR 3212. As the movant for summary judgment, the wife has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Augur v. Augur, 90 AD3d 1111 (3rd Dept. 2011). CPLR 3212 (b) requires this court to determine if the movant's papers justify holding as a matter of law that "there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the wife must be viewed in the light most favorable to the husband. Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2nd Dept. 1990). Summary judgmentshall be granted only when there are no issues of material fact, and the evidence requires the court to direct judgment in favor of the wife as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979). Here, the wife could meet this burden by establishing that the husband was unable to demonstrate one or more elements of a cause of action for a constructive trust. Christou v. Christou, 109 AD2d 1058 (4th Dept. 1985) aff'd Christou v. Christou, 65 NY2d 853 (1985). Because she challenges the husband's proof on these issues, the burden shifts to the husband who must "provide evidence in admissible form and show facts sufficient to require a trial of any issue of fact." Zuckerman v City of New York, 49 NY2d 557, 562, (1980). In reviewing wife's motion for summary judgment, this court must accept the husband's facts as true, and draw all reasonable inferences in the light most favorable to him. Asabor v Archdiocese of N.Y., 102 AD3d 524 (1st Dept. 2013); Keating v Town of Burke, 2013 NYAD LEXIS 2243 (3rd Dept. 2013). If there are any genuine and material disputed issues of fact, the motion is denied. Zuckerman v City of New York, 49 NY2d 557, 562, (1980). In reviewing a motion for summary judgment, the court does not assess either party's credibility. Ferrante v American Lung Assn., 90 NY2d 623, 631 (1997). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, when faced with a motion for summary judgment. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The wife's affidavit in support of summary judgment adds few facts for the court's consideration. The wife makes no comment about whether a confidential relationshipexisted or, if it did, when it surfaced during their relationship. The wife makes no reference to any "promise" made to the husband. She makes no reference to the comment about "making the house our home," and makes no reference to the "suggestion" that the husband alleges she made regarding changing title to the property. She also does not contest the alleged improvements made by the husband. She makes no reference to any "unjust enrichment" and makes no comment about whether the value of the property was enhanced as a result of the husband's alleged improvements. Most of the wife's affidavit contests the husband assertion that she was at fault for the dissolution of the marriage. For purposes of this motion, the husband's version of the facts necessary to establish a constructive trust are presumed to be true and the husband is entitled to every favorable inference from them. Barr v. Wackman, 36 NY2d 371, 375 (1975); Besser v. Miller, 12 A.D.3d 1118, 1119 (4th Dept. 2004).

The Claim for a Constructive Trust

To impose a constructive trust upon real property,² a plaintiff must prove: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and(4) unjust enrichment. Sharp v. Kosmalski, 40 NY2d 119, 121 (1976); Maiorino v. Galindo, 65 AD3d 525, 526 (2nd Dept. 2009); Asinoff v Asinoff, 2013 NY Slip Op 50515(U) (Sup. Ct. Kings Cty. 2013). These principles "are simply guidelines and are not to be applied rigidly in pursuing the goal of preventing unjust enrichment." Henness v Hunt, 272 AD2d 756, 757 (2000); Matter of Almasy v Ward, 53 AD3d 946, 947 (2008). Judge Benjamin Cardozo advised that courts considering such a trust should not rely heavily on formalisms and too little on basic equitable principles, especially when family transactions are involved. "The equity of the transaction must shape the measure of relief." Beatty v Guggenheim Exploration Co., 225 NY 380, 389 (1919) (Cardozo, J.). He added:

[A] constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.

Beatty v Guggenheim Exploration Co., 225 NY at 386. The broad equitable precepts that anchor the constructive doctrine permit litigants a wide berth in constructing their claims. Even if the husband cannot plead, with specificity, the four elements of a constructive trust, a court may still entertain the claim. Robinson v. Day, 103 AD3d 584, 587 (1st Dept. 2013) (Although the [Sharp v. Komalski] factors are useful in many cases, constructive trust doctrine is not rigidly limited." citing Simonds...