M.G. v. N.HD

64 Misc.3d 1206 (A)

116 N.Y.S.3d 493 (Table)

M.G., Plaintiff,

v.N.HD., Defendant.

300534/18

Supreme Court, New York County, New York.

Decided on June 6, 2019

Wendy Parmet, Esq., Linda Zhou, Esq., Parmet and Zhou, LLC, and Gary I. Cohen, Esq., counsel pro haec vice, for Plaintiff.

Harriet Newman Cohen, Esq., Cohen Rabin Stine Schumann, LLP for Defendant.

Laura E. Drager, J.

In this divorce action, the Plaintiff ("Husband") seeks summary judgment finding the prenuptial agreement executed by the parties on September 14, 2007 (the "Prenuptial Agreement") is enforceable.¹ The Defendant ("Wife") opposes his application.

UNDISPUTED FACTS

The parties lived together for an unspecified period before they married. In May 2006, more than a year prior to their marriage, they purchased an apartment in Manhattan titled in their joint names (the "Marital Apartment").

The parties were in their late fifties when they married. They have no children together. Each party held significant assets at that time. This was the Wife's second and the Husband's first marriage. The Wife, now age 70, has adult sons from her prior marriage. The Husband, also now age 70, is a stockbroker. The Wife is an art expert. When the parties married she was a curator with a museum. The Wife has been unemployed since 2009 when she was fired by the museum. She brought an age discrimination lawsuit against the museum and received an unspecified payment in settlement of that case.

The Prenuptial Agreement contains, inter alia, an expansive definition of separate property, a waiver of spousal maintenance and a waiver of counsel fees in the event of a divorce. The definition of separate property is expanded to include increases in value of a party's separate property that occurs during the marriage. In addition, separate property cannot be transmuted into marital property. (Ex. 1, pp. 3-6, Husband's Cross Motion). Marital property is restricted to property gifted or acquired in the parties' joint names and is to be deemed owned by the parties as tenants by the entirety. (Id. p.8).

Four months prior to entering into the Prenuptial Agreement, the parties entered into a letter agreement dated May 28, 2006 (the "Letter Agreement"). The Letter Agreement provides that if any of the Wife's three sons engage in disruptive or abusive behavior toward either of the parties while visiting in any of their residences, that son could be excluded from the residence. (Ex. 1, Husband's Cross Motion). Further, one of the sons was prohibited from entering any of the parties' residences without the prior, express permission of the Husband. In the Prenuptial Agreement, the parties modified the terms of the Letter Agreement to allow the excluded son into the parties' residences if the Wife was incapacitated or could not otherwise see the son. The Letter Agreement was otherwise incorporated into and annexed to the Prenuptial Agreement. (Ex. 1, page 11, Husband's Cross Motion).

In an exhibit to the Prenuptial Agreement, the Wife listed assets worth approximately $1,991,750² and the Husband listed assets worth $1,253,970.³ (Ex. 1, Husband's Cross Motion).

The Prenuptial Agreement was signed one day before the parties married on September 15, 2007. The Husband commenced this divorce action on January 22, 2018.⁴

Discussion

The Husband seeks summary judgment to find the Prenuptial Agreement enforceable. The Wife argues the agreement is invalid and unenforceable due to the Husband's overreaching and duress committed against her both before and after the Prenuptial Agreement was signed. The Wife also asserts that the waiver of maintenance is unconscionable at present. The Wife further claims that the waiver of counsel fees is unenforceable given the present disparity between the parties' finances.

Summary Judgment

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 (1985). On a motion for summary judgment, "the facts must be viewed in the light most favorable to the non-moving party." Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012). Summary judgment must be denied if there are any issues of material fact that require trial.

Validity of Prenuptial Agreement

The Husband makes a prima facie showing that the Prenuptial Agreement is valid. There is no dispute that it is signed and properly acknowledged by each party. DRL 236B (3). It recites that each party was represented by independent counsel of his and her own choosing and received "advice pertaining to the negotiation, preparation and execution" of the agreement. It further recites: "each party has carefully considered and weighed all the facts, conditions and circumstances likely to influence his or her judgment herein, and consequently each party is entering into this Agreement freely, voluntarily and with full knowledge and understanding of all the provisions contained herein. " (Emphasis added, Ex. 1, Husband's Cross Motion).

The terms of the Prenuptial Agreement are neither unfair nor unreasonable. Each party is entitled to retain his or her separate property and any increase in value of property acquired from the sale or transfer of the separate property. At the time the Prenuptial Agreement was signed, the Wife held separate property valued at more than twice the value of the Husband's separate property. (Ex. 1, Husband's Cross Motion). The parties waived maintenance based on their respective financial circumstances.

"It 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 interests through contractual arrangements.’ Bloomfield v. Bloomfield, 97 NY2d 188 (2001). "Thus, a prenuptial agreement ‘is presumed to be valid and controlling unless and until the party challenging it meets his or her very high burden to set it aside.’ " ( Anonymous v. Anonymous, 123 AD3d 581,582 [1st Dep't 2014] ). Gottlieb v. Gottlieb , 138 AD3d 30, 36 (1st Dep't 2016). "The burden of proving evidence of fraud, duress or overreaching is on the party asserting the invalidity of the agreement ( Matter of Greiff, 92 NY2d 341, 344 (1998) ; Cohen v. Cohen , 93 AD3d 506 (1st Dep't 2012).

A party challenging a prenuptial agreement on the ground of overreaching:

must show overreaching in the execution, such as the concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception. (see Stawski v. Stawski, 43 AD3d 776, 777 [1st Dep't 2007] ; Matter of Baruch, 205 Misc. 1122, 1124 [Sur. Ct. Suffolk County 1954], aff'd 286 A.D. 869 [1st Dep't 1955] ). In addition, the challenging party must show that the overreaching resulted in terms so manifestly unfair as to warrant equity's intervention. (see Levine v. Levine, 56 NY2d 42, 47[1982] [to set aside agreement, both overreaching and manifest unfairness must be demonstrated]; Christian, 42 NY2d at 72 ; Barocas v. Barocas , 94 AD3d 551 [1st Dep't 2012], appeal dismissed 19 NY3d 993 [2012] ; Bronfman v. Bronfman, 229 AD2d 314, 315 [1st Dep't 1996] [challenger of agreement bears "very high burden" of showing that it is manifestly unfair and that such unfairness was the result of overreaching] ).

Gottlieb v. Gottlieb, 138 AD3d 30, 37 (1st Dep't 2016).

The burden is on the Wife to produce evidence of material issues of fact which require a trial. See, Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). See also, Johnson v. Phillips , 261 AD2d 269 (1st Dept 1999).

The Wife claims that the relationship between the parties prior to execution of the Prenuptial Agreement was characterized by a pattern of coercive control by the Husband. She claims that the Husband's professions of love and extravagant compliments were "offset and then overwhelmed by appalling verbal and emotional abuse and obsessive and controlling behavior," including 25 to 30 telephone calls to her at work per day, attempts to alienate her from her sons, demands that she wait on him at home like a servant and intimidation with his tone of voice. The Wife points to the Letter Agreement potentially excluding her sons from the marital residences as evidence of the Husband's coercion and overreaching. She further asserts that her independence was "greatly compromised" prior to the marriage due to the fact that she sold her separate property house in Connecticut to use the proceeds to purchase the Marital Apartment which she claims was purchased at the Husband's insistence. The Wife claims that the Husband insisted that she contribute equally to the purchase price although he was the higher wage earner and possessed greater wealth. As a result, the Wife claims she became "emotionally subservient" to the Husband. She also contends that the Husband's relentless negotiating style, repeating his demands to her and to her counsel while refusing to "be transparent about his finances" "ultimately wore her down" until she signed the Prenuptial Agreement, sobbing and robbed of her free will, the day before the wedding. (Ex. E, Cohen Aff. 10/17/18, Wife's Verified Answer).

The Wife was represented by highly experienced matrimonial attorneys of her own choosing during the negotiations leading to the signing of the Prenuptial Agreement. Negotiations occurred over several months and several drafts of the agreement were passed between counsel over two weeks before the agreement was finalized. The Wife submits no evidence from her then-counsel to support her claims about the Husband's relentless negotiating style, lack of financial transparency, or the Wife's emotional distress prior to and at the time the agreement was signed. There is no evidence that the Wife's attorneys told her not to sign the agreement. Her attorneys, who still practice, have direct knowledge of the...