Pia M. v. Mitchell M.

71 Misc.3d 666

144 N.Y.S.3d 312

PIA M., Plaintiff,

v.MITCHELL M., Defendant.

xxxxx

Supreme Court, New York County, New York.

Decided on March 3, 2021

Counsel for Plaintiff: Michael L. Fried, Samantha M. Cooper, Berkman Bottger Newman & Schein LLP

Counsel for Defendant: Kevin M. McDonough, Perri W. Blitz, Mantel McDonough Riso, LLP, New York, NY

Douglas E. Hoffman, J.

In this action for divorce and ancillary relief, Plaintiff Wife Pia M. ("Plaintiff" or "Wife"), moves, by order to show cause, ... [redacted by court for publication]:

a. Setting aside and vacating the parties’[...] 2003 Prenuptial Agreement (hereinafter "PNA") in its entirety and declaring the entire PNA null and void; and

b. In the alternative, setting aside, vacating and declaring as null and void that provision of the PNA pertaining to a waiver of spousal maintenance; and

c. Setting aside, vacating and declaring as null and void that portion of the PNA pertaining to a "cap" of Defendant's income up to $100,000 in determining his basic child support obligation; and

d. Declaring the "2005 Modification of Prenuptial Agreement" void ab initio; and

e. Directing Defendant to remit payment directly to Plaintiff's counsel, BERKMAN BOTTGER NEWMAN & SCHEIN, LLP in the sum of $100,000 for the reasonable counsel fees, expenses and costs incurred by Plaintiff by having to seek to set aside, vacate and declaring null and void that portion of the PNA pertaining to a waiver of spousal maintenance as well as the "cap" of Defendant's income up to $100,000 in determining his basic child support obligation.

[NYSCEF doc. 9].

Defendant opposes and cross-moves on seq. 002, for an order "(a) pursuant to CPLR § 3212, granting Defendant partial summary judgment sustaining the parties’ [PNA] and finding that said agreement is valid and enforceable." [NYSCEF doc. 25].

Background

The parties are married and continue to reside in separate parts of their multi-story marital residence. Wife filed for divorce in early 2020. [...].

The Prenuptial Agreement

On September 30, 2003, prior to the marriage, the parties entered into the PNA. The PNA included provisions regarding separate property, estate waivers, maintenance waivers, and waivers of attorney's fees, as defined therein. At the time, the parties were expecting their first child, and there are also child support, custody, parenting time, and international relocation provisions in the PNA.

Specifically, article 1, entitled "Separate Property of Each Party" provides [a list of real, personal, vested, contingent, etc] property that shall remain separate property of each party, during the marriage, in the event of divorce, or upon the death of either party: [including]

... [Defendant] specifically reserves the right to transfer any and all of his separate property to a family limited partnership or an asset protection trust, or any other tax-saving vehicle that he determines to be appropriate.

...

[NYSCEF doc. 12, PNA at 1-3].

Article 2 entitled "Joint or Marital Property" provides that "[i]t is the present intention of the parties not to acquire any joint or marital property during the marriage, except as otherwise provided for in [the PNA]" (id. at 3). [...]

With respect to the marital residence, the PNA states that at the time the parties entered into the agreement, Defendant owned a condominium located at [...], New York, New York, which was purchased with his own funds. The provision further states that the condominium [and any replacement residence] "shall remain the separate property of [Defendant] notwithstanding the marriage of the parties and notwithstanding any contributions [Plaintiff] may make [...]" (id. at 3-5 [emphasis added]). [Parties also waived any interest in pensions, and the other's estate, except wife may receive, if husband predeceases her, the equitable distribution she could have received under the PNA from husband's estate].

Article 7, entitled "Children" provides that "[i]t is the intention of the parties to have one or more children during the marriage. It is the intention of the parties to have their first child, if possible, during the first year of their marriage" (id. at 7). At the time of the PNA, Plaintiff had approximately $24,000 in debt, which Defendant agreed to pay in four annual payments of $6,000 (id. ). [As of the date of the execution of the PNA, Defendant acknowledges that his net worth was $30,972,400 (Plaintiff exhibit A).]

[ ]

Article 13, entitled "Legal Representation," provides:

"The parties each acknowledge that they have retained and have been represented by separate and independent counsel of their own choosing in connection with the negotiation of this Agreement. Each has been separately and independently advised regarding this Agreement including the rights waived or otherwise released herein. [...]"

(id. at 14 [emphasis added]).

[PNA also included a merger clause and a paragraph attesting that it is fair, just, and voluntary agreement]. [...] (id. at 15-16).

Plaintiff's Contentions

Plaintiff was born in [another country] [...]. In February 2000, she relocated to New York for work, where she was employed as a foreign exchange sales representative with [...] Bank. When Plaintiff came to New York, she received a two-year work visa. She met Defendant in December 2000 and they started dating. By February 2002, Plaintiff's work visa had expired and she returned to [her home country].

According to Plaintiff, after her return to [her home country], Defendant called her asking her to return to live with him in New York. He promised to take care of her financially. Since she no longer had a work visa, she could only return to the United States for a limited 90-day period by means of a tourist visa. In or about March 2002, she returned to New York and lived with Defendant. Thereafter, in or about May 2002, the parties returned to [...]. Plaintiff quit her job, and the two traveled between New York and Europe for much of the remainder of 2002.

In November 2002, the parties became engaged and then traveled to [...] to celebrate Christmas with Plaintiff's family. Between January 2003 and April 2003, Plaintiff traveled between [...] and New York City on a tourist visa. The parties began to plan for their wedding and according to Plaintiff, agreed to get married sometime in early September 2003. Plaintiff sent out informal "save the dates" for a September 2003 wedding, so that her friends and family would have time to make travel and hotel arrangements. During the month of July 2003, the parties traveled to Europe to vacation in the French Riviera and Italy. By mid-July, the parties realized they were not prepared to finalize wedding plans for September and Plaintiff notified family and friends that the wedding was postponed. Thereafter, on July 26, 2003, while still vacationing in France, Plaintiff learned that she was pregnant. The parties returned to New York City the next day.

The PNA & Representation by Counsel

According to Plaintiff, two days after learning that Plaintiff was pregnant (in July 2003), Defendant contacted his attorney about terms of a prenuptial agreement. However, it was not until the end of August/beginning of September 2003, that Defendant presented Plaintiff with a draft of the PNA. She was four months pregnant with their first child at that time. Upon receipt of the PNA, and after speaking with her parents, Plaintiff contacted [Attorney 1], who was recommended by [...] an attorney her parents had researched to help her. Plaintiff contacted [Attorney 1] on September 2, 2003 to obtain his opinion and advice regarding the terms of the PNA. Plaintiff claims that on his own volition, Defendant sent the agreement directly to [Attorney 1] in anticipation of her consultation. When she then met with [Attorney 1] (possibly later that same day), he advised her that he read the proposed PNA and in his opinion, it was "horrible" and she should not sign it. [Attorney 1] worked with her on the matter between September 2, 2003 and September 18, 2003. However, throughout that time, Defendant "incessantly and relentlessly, hectored [her] during this time, to sign the agreement ... ‘as is’ without making any changes or edits" (Pia M. aff, ¶ 13).

Though Defendant previously agreed to pay for her representation, he allegedly became very upset and directed her to question [Attorney 1] about the charges. Defendant refused to pay [Attorney 1] claiming [Attorney 1] was "too fancy" and that she did not need a "Madison Avenue Lawyer" (id. at ¶ 14). Defendant then selected another attorney, [Attorney 2], for Plaintiff. Plaintiff avers that she had nothing to do with the selection of [Attorney 2], with whom she had only met on one occasion prior to signing the PNA. Plaintiff was not advised of the financial consequences of the PNA. Rather, the focus of discussions concerned those provisions detailing custody of the parties’ unborn children and Plaintiff's ability to retain residential custody of them, including a potential relocation with them back to [wife's home country] in the event of a divorce. Following that meeting, Plaintiff had no further contact with [Attorney 2] until September 30, 2003.

Plaintiff further states that on September 30, 2003, when she appeared in [Attorney 2]’s office in Brooklyn, she was pregnant, unemployed, bereft of any assets of her own, residing in the United States on a ninety (90) day tourist visa that was expiring shortly, and living approximately [thousands of] miles away from her friends and family. According to Plaintiff, she felt that if she did not sign the PNA she would not be married and would be forced to return to her family's home in [...] unemployed, and forced to raise their child as a single mother. She also considered that she would be depriving an innocent child of the right to have his or her father living in close proximity and participating regularly in his or her life. She believed that she had absolutely no alternative but to sign the PNA on September 30,...