Parker v. Parker

• Decision Date: 03 September 2003
• Citation: 196 Misc.2d 672,766 N.Y.S.2d 315
• Parties: KENNETH R. PARKER, Plaintiff,<BR>v.<BR>CONCELIA PARKER, Also Known as CONNIE PARKER, Individually and as Trustee of the Living Trust of CONCELIA PARKER, Defendant.
• Court: New York Supreme Court

196 Misc.2d 672

766 N.Y.S.2d 315

KENNETH R. PARKER, Plaintiff,

v.CONCELIA PARKER, Also Known as CONNIE PARKER, Individually and as Trustee of the Living Trust of CONCELIA PARKER, Defendant.

September 3, 2003.

Dominic A. Barbara, Garden City, for plaintiff.

Brancato & Marchese, P.C., Manhasset, for defendant.

OPINION OF THE COURT

ANTHONY J. FALANGA, J.

This is a motion by the husband for an order restraining the wife and her agents, during the pendency of the action, from making any disposition of separate and/or marital assets, including $8,590,077 in lottery winnings; and for a further order requiring the defendant to place the sum of $3,500,000 in the husband's name or in escrow and directing them to provide an accounting of the disbursements of said lottery winnings.

The following facts are not in dispute: The parties were married on June 20, 1987. At the time of the marriage, the husband was 61 and the wife was 58 years old. Both parties had been widowed. The husband is presently 77 and the wife is 74 years old. The husband has five adult children from a prior marriage. The wife has three adult children from a prior marriage.

In June 1987, prior to their marriage, the parties executed and acknowledged a written agreement waiving their respective rights of election in the other's estate. Said agreement also provides, to wit: "In the event of a divorce, separation of the parties or annulment of the marriage no claims shall be made by either party against the other's title and interest in his or her separate and sole property * * * Sole and separate property shall include any real or personal property individually owned by either party whether the same be acquired prior to or subsequent to the execution of this agreement and marriage of the parties. Marital property shall include only such real or personal property held jointly or by the entirety."

During the marriage, the parties lived modestly in a rental apartment. The husband had income of approximately $2,100 to $2,400 a month from Social Security and a pension. The wife received $400 a month Social Security and a pension, in an undisclosed monthly amount. The parties maintained a joint checking account. The wife received a personal injury settlement of $18,000 and did not deposit said funds into the joint account.

The parties vacationed in Las Vegas and Atlantic City on various occasions. They both gambled during such trips. The wife regularly played the New York State lottery using the same sets of numbers comprised of family birth dates and ages.

On February 12, 2003, a lottery ticket purchased by the wife was the only winning ticket of a $25,000,000 lottery prize. On March 6, 2003, the parties and one of the wife's children took a limousine to Madison Square Garden to collect a check for $8,590,077. The check was made payable to the wife. There are additional taxes due on said winnings of $1,300,000. On March 7, 2003, the parties met with an accountant. On March 8, 2003, they met with an agent from Merrill Lynch. On March 19, 2003, the parties signed a contract to purchase a condominium in Melville for $490,000. On April 8, 2003, the wife placed the lottery winnings into the Concelia Parker Living Trust. As of April 25, 2003, said trust had $8,000,950.69 on deposit in a Merrill Lynch account. The trust document provides that upon the wife's death, the husband receives any residence in which he resides at the time of her death. In addition, he receives the income from $500,000 segregated into a marital trust. The balance of the trust passes to the wife's children. Both parties attended the closing of the Melville condominium on April 25, 2003. Title to the condominium was placed in the name of the Concelia Parker Living Trust. The husband commenced the instant action for divorce or separation on May 22, 2003. Prior to the commencement of the action the wife made certain gifts of the lottery winnings to her children. No details have been provided with regard to said gifts. The husband does not have access to the Melville condominium.

The husband contends that during the marriage he paid all the household bills; that he never asked the wife for "a dime"; that she was free to spend her retirement funds as she saw fit; that he never received any portion of the wife's personal injury settlement despite the fact that he spent $3,300 to fund the litigation; that he paid $15,000 for the wife's daughter's wedding; that he lent her son $8,000 and her daughter $3,300; that he and the wife always shared gambling winnings on their trips to Las Vegas and Atlantic City; that he and the wife "always purchased lottery tickets in the past with the use of joint funds"; that he gave the wife the $20 she used to purchase the winning ticket; that lottery officials told him it "didn't matter" if one or both parties' names were on the check; that he used $1,500 of funds from the parties' joint account as a deposit on the Melville condominium; and that he was "led to believe" he would have joint access by means of a checkbook and credit card to the trust funds on deposit in Merrill Lynch.

The wife contends that she contributed her late husband's pension check toward household expenses and supported herself and paid all her own bills with her late husband's Social Security; that the husband herein never gave her "even a quarter" for gambling in Las Vegas and Atlantic City; that he never shared gambling winnings with her; that her lottery tickets were always purchased with her separate property, to wit: her personal injury proceeds or Social Security; that the husband encouraged her to make gifts of the lottery winnings to her children; and that other than said gifts, she has not made any disbursements of the lottery winnings except in the ordinary course of living.

Based upon all of the foregoing, the motion is decided as follows: The law is well settled that a lottery prize won during a marriage is generally considered property acquired during the marriage subject to equitable distribution pursuant to Domestic Relations Law § 236 (B) (see, Campbell v Campbell, 213 AD2d 1027 [1995]; Smith v Smith, 162 AD2d 346 [1990], lv denied 77 NY2d 805 [1991]; Ullah v Ullah, 161 AD2d 699 [1990], lv denied 76 NY2d 704 [1990]). There is no reported precedent governing the effect of a prenuptial "opting-out" agreement vis-à -vis lottery winnings won during a marriage. The issue herein, of the husband's entitlement to equitable distribution of the proceeds paid to the wife by the New York State lottery, appears to be of first impression.

The husband's summons with notice does not set forth a cause of action to set aside the prenuptial agreement dated June 1987, nor has he asserted allegations that said agreement is the unconscionable product of overreaching, fraud, duress or mutual mistake. Said agreement clearly states that the only property subject to equitable distribution is property held in joint name. The lottery proceeds in issue are not held in joint name. Accordingly, pursuant to the terms of the June 1987 agreement, the winnings are, prima facie, the wife's separate property, not subject to equitable distribution.

The husband's summons with notice does, however, seek a determination that the lottery winnings are the joint property of the parties. The court has the authority, in an action for divorce and/or separation, to decide questions of title pursuant to Domestic Relations Law § 234.

An oral agreement to share lottery winnings is valid and enforceable (see, ...