Trbovich v. Trbovich

• Citation: 2014 N.Y. Slip Op. 08159,122 A.D.3d 1381,997 N.Y.S.2d 855
• Decision Date: 21 November 2014
• Docket Number: 1108 CA 13-02249
• Parties: Nicholas D. TRBOVICH, Plaintiff–Appellant, v. Jacqueline TRBOVICH, Defendant–Respondent. (Appeal No. 1.).
• Court: New York Supreme Court Appellate Division

122 A.D.3d 1381
997 N.Y.S.2d 855
2014 N.Y. Slip Op. 08159

Nicholas D. TRBOVICH, Plaintiff–Appellant
v.
Jacqueline TRBOVICH, Defendant–Respondent. (Appeal No. 1.).

1108 CA 13-02249

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 21, 2014.

997 N.Y.S.2d 856

Lipsitz Green Scime Cambria LLP, Buffalo, Bouvier Partnership, LLP, East Aurora, The Cosgrove Law Firm (Edward C. Cosgrove of Counsel), for Plaintiff–Appellant.

Law Office of Joseph G. Makowski, Buffalo (Joseph G. Makowski of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY AND VALENTINO, JJ.

Opinion

MEMORANDUM:

122 A.D.3d 1381

Plaintiff husband appeals from three orders in this matrimonial action. By the order in appeal No. 1, Supreme Court denied plaintiff's motion for, inter alia, summary judgment

122 A.D.3d 1382

seeking a divorce pursuant to Domestic Relations Law § 170(7) and to vacate a prior ex parte order awarding temporary maintenance to defendant. By the order in appeal No. 2, the court granted defendant's motion for attorneys' fees in the amount of $56,190, subject to equitable distribution and, by the order in appeal No. 3, the court, inter alia, directed plaintiff to respond to defendant's discovery demands and scheduled plaintiff's deposition.

We conclude in appeal No. 1 that the court properly denied that part of plaintiff's motion for summary judgment seeking a divorce pursuant to Domestic Relations Law § 170(7). The requirements for a divorce under that section are (1) a statement under oath by one party that the relationship has broken down irretrievably for a period of at least six months; and (2) a resolution of “the economic issues of equitable distribution of

997 N.Y.S.2d 857

marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage” (id. ). We agree with plaintiff that the opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse's sworn statement that the relationship has broken down irretrievably for a period of at least six months (see Palermo v. Palermo, 35 Misc.3d 1211[A], 2011 N.Y. Slip Op. 52506[U], 2011 WL 7711557, *15, affd. for reasons stated 100 A.D.3d 1453, 953 N.Y.S.2d 533 ; see e.g. Rinzler v. Rinzler, 97 A.D.3d 215, 218, 947 N.Y.S.2d 844 ; A.C. v. D.R., 32 Misc.3d 293, 306, 927 N.Y.S.2d 496 ). To the extent that our decision in Tuper v. Tuper (98 A.D.3d 55, 59, 946 N.Y.S.2d 719 n) suggested otherwise, we decline to follow it.

Nevertheless, plaintiff is not entitled to summary judgment under Domestic Relations Law § 170(7) at this juncture of the litigation. The statute provides that “[n]o judgment of divorce shall be granted under this subdivision unless and until” the ancillary economic and custodial issues “have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce” (§ 170[7] ), and here the ancillary issues have not been resolved by the parties or determined by the court (see Palermo, 35 Misc.3d 1211[A], 2011 N.Y. Slip Op. 52506[U], 2011 WL 7711557, *15 ; A.C., 32 Misc.3d at 308, 927 N.Y.S.2d 496 ).

In appeal Nos. 1 and 2, plaintiff contends that the court erred in granting defendant pendente lite relief in the form of housing expenses and weekly support (collectively, temporary maintenance) and in granting defendant's motion for attorneys' fees because the parties' prenuptial agreement precludes such awards. We agree. As an initial matter, we reject defendant's

122 A.D.3d 1383

contention that any issue concerning the award of temporary maintenance is not properly before us. Although no appeal lies from an ex parte order (see CPLR 5701[a][2] ; Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 ), here plaintiff, by way of the instant motion on notice that is the subject of appeal No. 1, sought to vacate the ex parte order awarding temporary maintenance and then took an appeal from the order in appeal No. 1, which denied his motion in all respects and continued the prior order (see CPLR 5701[a][3] ; Sholes, 100 N.Y.2d at 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 ; Village of Savona v. Soles, 84 A.D.2d 683, 684–685, 446 N.Y.S.2d 639 ).

With respect to the merits of plaintiff's contention, we note that “[i]t is well settled that duly executed prenuptial agreements are generally valid and enforceable given the ‘strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements' ” (Van Kipnis v. Van Kipnis, 11 N.Y.3d 573, 577, 872 N.Y.S.2d 426, 900 N.E.2d 977, quoting Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950 ; see Domestic Relations Law § 236[B] [3] ). “[A] prenuptial agreement is accorded the same presumption of legality as any other contract ... and the validity of such an agreement is presumed unless the party opposing the agreement comes forward with evidence demonstrating ‘fraud, duress, or overreaching, or that the agreement or stipulation is ... unconscionable’ ” (Darrin v. Darrin, 40 A.D.3d 1391, 1392–1393, 838 N.Y.S.2d 678, lv. dismissed 9 N.Y.3d 914, 844 N.Y.S.2d 168, 875 N.E.2d 886 ). “As with all contracts, prenuptial agreements are construed in accord with the parties' intent, which is generally gleaned from what is expressed in their writing” (

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