The following case decided by a Judge in Brooklyn lays out the law.

Supreme Court, Kings County, New York.

Simon KUDROV, Plaintiff,

v.

Lyudmila KUDROV, Defendant.

Feb. 23, 2005.

SARAH L. KRAUSS, J.

The defendant, Lyudmila Kudrov, has moved by order to show cause for an order to enforce certain provisions of a postnuptial agreement, dated Decemebr 21, 1996. The plaintiff opposes the motion and argues that the agreement is unenforceable and void because it was not properly acknowledged. For the reasons that follow, the defendant's motion is denied and the agreement is deemed invalid and unenforceable.

Background

The parties were married on August 26, 1992. On December 21, 1996 the parties entered into a written agreement which provided for the equitable distribution of their marital property. On January 21, 1997 the plaintiff commenced an action for divorce which was uncontested and resulted in a Judgment of Divorce dated July 8, 1997. The agreement was incorporated, but did not merge into the Judgment of Divorce. [FN1] The defendant now moves, by order to show cause, to specifically enforce the provision of the agreement which stipulates that the parties shall be joint owners of two taxi cab corporations with the net profits to be divided equally between the parties. [FN2] The defendant claims that the plaintiff has failed to share any profits from the operation of the two taxi cab corporations and has prevented her from obtaining any information regarding the operation of the businesses. [FN3]

FN1. Although the Judgment of Divorce refers to the Agreement as a Stipulation of Settlement, because the Agreement preceded the matrimonial action, it is technically a marital agreement pursuant to DRL ? 236(B)(3).

FN2. Article IX, paragraph C of the agreement specifically states: "In consideration of the Wife's investment of her money towards the purchase of the ownership of five (5) medallions in two (2) corporations, namely Lou Lou Transit, Inc. (3 cabs) and Tomcat Transit, Inc. (2 cabs), the parties agree that the ownership of the said corporations shall be jointly owned by both of them and that the Husband shall continue to manage the said medallions and the taxis to which they are attached and shall pay all business expenses, including management fee (sic), relating to such taxis from any income generated by them. Any profits resulting from said medallions and taxis or the corporations to which those taxis belong shall be divided between the parties."

FN3. The order to show cause was originally argued before the Honorable Betsy Barros on January 20, 2005. On that date an order was entered directing the plaintiff to provide for the inspection and copying of all the books and records of the two subject taxi cab corporations within 30 days. A compliance conference was scheduled for March 30, 2005.

Although it appears that the parties have complied with all other aspects of the agreement to date, the plaintiff opposes the defendant's request for relief and seeks to deem the agreement unenforceable and invalid as it was not acknowledged or proven in a manner required to entitle a deed to be recorded. See, Domestic Relations Law (DRL) ? 236(B)(3). The agreement itself was subscribed by the parties in the State of Florida. The certificate of acknowledgment, however, reveals that the acknowledgment was made before a New York notary.

Legal Discussion

DRL ? 236(B)(3) provides that: "[a]n agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded."

In Matisoff v. Dobi, 90 N.Y.2d 127 (1997), the Court of Appeals reversed a decision of the Appellate Division, First Department and held that a postnuptial agreement which had been signed, but not acknowledged, was not specifically enforceable in a matrimonial action because it failed to comply with the terms of DRL ? 236(B)(3). In reaching its holding, the Court ultimately rejected the analysis of the Appellate Division which had concluded that, where various equitable factors are present, the failure to comply with the statutory requirement of acknowledgment should not constitute an absolute bar to enforcing a nuptial agreement. [FN4] The Court of Appeals, instead, specifically opted for a "bright-line rule" that would require acknowledgment in every case involving marital agreements, and noted that such a rule would be easy to apply and would place couples and their legal advisors on notice of the prerequisites to a valid nuptial agreement. Matisoff at 135.

FN4. In Matisoff, the Appellate Division had reversed a determination by the trial court which had ruled that the postnuptial agreement was unenforceable despite admissions by the parties, during their divorce trial 13 years later, that the signatures on the agreement were genuine. The Appellate Division opted for a more flexible approach given that there was no evidence of fraud, duress or misunderstanding and that the terms of the postnuptial agreement had been acknowledged and ratified in the daily activities and the property relations of the parties throughout the marriage. However, as already discussed, this flexible approach was rejected by the Court of Appeals for a "bright-line rule".

Since the agreement at issue is a marital agreement pursuant to DRL ? 236(B)(3), the agreement itself must be acknowledged in the manner required to entitle a deed to be recorded. [FN5] Thus, there must be an oral acknowledgment before an authorized officer, and a written certificate of acknowledgment must be attached to the agreement. See, Matisoff at 137; Filkins v. Filkins, 303 A.D.2d 934 (4th Dept., 2003); Real Property Law (RPL) ? ? 291, 298, 299, 306.

FN5. Moreover, the agreement itself provided that it should be construed under the laws of the State of New York.

It is undisputed that the acknowledgment in this case was made in the State of Florida before a New York notary public. Pursuant to RPL ? 299, acknowledgments of the conveyance of real property situated in New York state can be made in another state only by certain officers, which include either a notary qualified in the State of Florida, or a commissioner of deeds appointed pursuant to the laws of New York State to take acknowledgments outside of the state. No evidence has been presented to this court that the New York notary who received and certified the acknowledgment in this case was, at the time, either qualified as a notary public in the State of Florida, or qualified in New York State as a commissioner of deeds entitled to take out of state acknowledgments. Moreover, pursuant to Executive Law ? 135, a notary public qualified in New York State is only empowered to receive and certify acknowledgments within and throughout New York State.

Accordingly, because the marital agreement in question was never properly acknowledged, it is invalid and unenforceable. See, Matisoff, supra.

The defendant essentially makes two arguments in support of upholding and enforcing the marital agreement. The first, is that the agreement has been acknowledged and ratified by the parties throughout the eight years it has been in effect. While this is a very compelling argument, the Court of Appeals in Matisoff, as already discussed, has rejected the consideration of such equitable factors. Nothing other than strict compliance with the acknowledgment rules of DRL ? 236(B)(3) will uphold the validity of a marital agreement. [FN6]

FN6. Although the Matisoff decision precludes consideration of equitable factors in determining the validity of a marital agreement, such factors will nevertheless be relevant should this court need to determine the equitable distribution of the two taxi cab corporations at issue. See, Matisoff at 136.

The defendant further asserts that the agreement in question is a binding stipulation and is entitled to be enforced pursuant to Civil Practice Law and Rules (CPLR) ? 2104. CPLR ? 2104 states as follows:

An agreement between parties and their attorneys relating to any matter in action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.

While it is true that both the First and Second Departments have held that an agreement which settles a matrimonial action is exempt from the statutory formalities of DRL ? 236(B)(3) and will be upheld as valid and enforceable if it complies with CPLR ? 2104 [FN7], the agreement in question was effectuated prior to commencement of the action and not in settlement of an existing action. The agreement, therefore, does not qualify as a settlement agreement subject to CPLR ? 2104 and is, therefore, not exempt from the requirements of DRL ? 236(B)(3). [FN8]

FN7. Rubenfeld v. Rubenfeld, 279 A.D.2d 153 (1st Dept., 2001); Nordgren v. Nordgren, 264 A.D.2d 828 (2nd Dept., 1999).

FN8. Whether the validity of a stipulation of settlement in a matrimonial action is controlled by CPLR ? 2104 or DRL ? 236(B)(3) is a subject which has divided the Appellate Divisions. The Third and Fourth Departments, unlike the First and Second, have determined that any nuptial agreement, including one which settles a matrimonial action, is subject to the statutory formalities of DRL ? 236(B)(3). The Court of Appeals has not yet settled this issue.

In light of the foregoing, the defendant's motion to enforce the postnuptial agreement dated December 21, 1996 is denied and the agreement is deemed invalid and unenforceable.

This constitutes the decision and order of the court.

In the case of Taub v. Taub, the Court ruled in favor of the husband in denying the wifes application for exclusive occupance of the marital residence.

DECISION & ORDER

In an action for a divorce and ancillary relief, the wife appeals from an order of the Supreme Court, Kings County (Krauss, J.), dated August 29, 2005, which, in effect, denied that branch of her motion which was for exclusive use and occupancy of the marital residence and directed the husband to erect a wall in the marital residence to provide separate living accommodations for the parties.

ORDERED that the order is affirmed, with costs.

Courts are statutorily empowered to grant one spouse temporary exclusive use and occupancy of the marital residence during the pendency of divorce proceedings (see Domestic Relations Law § 234). Such an order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife (see Kenner v Kenner, 13 AD3d 52; Mitzner v Mitzner, 228 AD2d 483; Annexstein v Annexstein, 202 AD2d 1062; Fakiris v Fakiris, 177 AD2d 540; Goodson v Goodson, 135 AD2d 604; Purdy v Purdy, 117 AD2d 659; Wolfe v Wolfe, 111 AD2d 809).

Contrary to the wife's contention, she did not meet her burden of establishing that the removal of the husband from the marital residence was necessary to protect her safety. The wife's only allegations of actual violence were incredible, and the alleged threats made by the husband were [*2]uncorroborated.

As it is undisputed that the husband did not voluntarily vacate the marital residence, there was no basis to award the wife exclusive occupancy of the marital residence. Thus, directing the separation of the marital residence into two separate residences, with each spouse having access only to their respective portions, while novel, was within the court's discretion.

The wife's remaining contentions are without merit.
SCHMIDT, J.P., SANTUCCI, SKELOS and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

She applied to the Court to be a reciever of the property and sell the house anyway. All the husband did was prolong the process and cost his money. He then had the nerve to appeal, which he lost.Supreme Court, Appellate Division, Second Department, New York.

Flora TREZZA, respondent,

v.

Richard TREZZA, appellant.

Sept. 26, 2006

HOWARD MILLER, J.P., THOMAS A. ADAMS, PETER B. SKELOS, and JOSEPH COVELLO, JJ.

In a matrimonial action in which the parties were divorced by judgment dated February 6, 1998, the defendant former husband appeals from so much of an order of the Supreme Court, Queens County (Leibowitz, J.), dated March 25, 2005, as, sua sponte, appointed the plaintiff former wife as receiver of the former marital residence, authorized her to enter into a contract of sale and to execute all documents necessary to sell the property and transfer title thereto on his behalf, and directed the plaintiff's attorney to hold the former husband's distributive share of the proceeds of the sale in escrow until released upon application to the court.

ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from, with costs.

Pursuant to the parties' stipulation of settlement which was incorporated but not merged into the judgment of divorce dated February 6, 1998, the parties agreed that the former marital residence would be sold. The former husband refused to execute a contract of sale, and the former wife moved to hold him in contempt and to have the court appoint her as the agent of the former husband to facilitate the sale of the former marital residence. Thereafter the parties entered into a stipulation dated October 15, 2004, resolving the motion. In the stipulation, the parties agreed that the former marital residence would be appraised and that the former husband would execute a contract of sale as long as the sale price was within $50,000.00 of the appraised price. The former marital residence was appraised at $600,000 and the former wife entered into a contract of sale with a third party for the sum of $575,000. Upon the former husband's refusal to execute the contract of sale, inter alia, the former wife was appointed receiver for the limited purpose of authorizing her to enter into a contract of sale and to execute all documents necessary to sell the property and transfer title thereto.

The Supreme Court properly appointed the former wife as receiver to effectuate the sale of the former marital residence. Her appointment as receiver was necessary because the former husband's willful failure to cooperate in effectuating the sale of the former marital residence as required by the parties' written stipulation (see Stern v. Stern, 282 A.D.2d 667, 668; Bock v. Bock, 170 A.D.2d 423, 424).

The former husband's remaining contentions are either improperly raised for the first time on appeal or without merit (see Mann v. All Waste Sys., 293 A.D.2d 656; Goldblatt v. LaShellda Maintenance Co., 278 A.D.2d 451).

Rule on these issues. Read the case below.
Supreme Court, Appellate Division, Second Department, New York.

In the Matter of Felicia Vasquez-WILLIAMS, respondent,

v.

Vincent WILLIAMS, appellant.

Sept. 12, 2006

ANITA R. FLORIO, J.P., GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ.

In a custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (MacKenzie, J.), dated August 24, 2005, which, after a hearing, inter alia, granted the mother's petition to modify the custody provisions of the parties' judgment of divorce and awarded her sole custody of the subject children.

ORDERED that the order is affirmed, with costs.

A parent seeking a change in custody must make an initial evidentiary showing sufficient to warrant a hearing (see McNally v. McNally, 28 A.D.3d 526, 816 N.Y.S.2d 98; Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 770 N.Y.S.2d 101; Corigliano v. Corigliano, 297 A.D.2d 328, 329, 746 N.Y.S.2d 313; Teuschler v. Teuschler, 242 A.D.2d 289, 660 N.Y.S.2d 744). Contrary to the father's contention, the mother's allegations that he imposed excessive and inappropriate discipline on the subject children, including corporal punishment, was sufficient to warrant a hearing.

"A change of custody should be made only if the totality of the circumstances warrants a modification" (Corigliano v. Corigliano, supra at 329, 746 N.Y.S.2d 313; see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95-96, 447 N.Y.S.2d 893, 432 N.E.2d 765). On this record, we discern no basis to disturb the Family Court's determination, made after a hearing and in camera interviews with the subject children (see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659), that it was in their best interests to award custody to the mother (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, supra at 93-95, 447 N.Y.S.2d 893, 432 N.E.2d 765).

The father's remaining contentions are without merit.

How much child support is going to be paid, or who pays the credit card debt or the car lease, then you have unresolved issues and you need the advice of an experienced lawyer. My office is not a paralegal service. We provide guidance and advice in the divorce process. If you are looking for the cheapest price for a divorce in New York, move on. Look for a subway ad or in the New York Post. If you are in the need of competent counsel then you should contact my office in New York or Brooklyn.

The appellate division recently ruled on this issue.
Supreme Court, Appellate Division, Second Department, New York.

Law Offices of Brian D. Perskin

In the Matter of Thomas SANNUTO, Jr., appellant,

v.

Jeannette PALMA-SANNUTO, respondent.

Aug. 8, 2006

STEPHEN G. CRANE, J.P., ROBERT A. SPOLZINO, STEVEN W. FISHER, and ROBERT J. LUNN, JJ.

In a proceeding pursuant to Family Court Act article 4 to terminate spousal support, the petitioner appeals from an order of the Family Court, Suffolk County (Simeone, J.), dated October 5, 2005, which denied his objections to an order of the same court (Grier, S.M.) dated August 15, 2005, which, without a hearing, granted the motion of the former wife to deny the petition and denied his cross motion to stay the proceeding.

ORDERED that the order is affirmed, with costs.

A divorce judgment of a sister state made in an action in which both parties were subject to the personal jurisdiction of the court is entitled to full faith and credit by the courts of this State (see Somma v. Somma, 19 A.D.3d 477, 477, 797 N.Y.S.2d 523; Green v. Green, 246 A.D.2d 627, 628, 669 N.Y.S.2d 48). However, the procurement of an ex parte judgment of divorce only dissolves the marital status of the parties, and has no effect upon the property held by the parties outside the jurisdiction of the State issuing it (see Somma v. Somma, supra at 478, 797 N.Y.S.2d 523; Young v. Knight, 236 A.D.2d 534, 534-535, 653 N.Y.S.2d 673; Mattwell v. Mattwell, 194 A.D.2d 715, 716, 600 N.Y.S.2d 98).

Contrary to the petitioner's contention, "a New York support order is not terminated by a subsequent out-of-State divorce decree when the foreign State does not acquire in personam jurisdiction of the New York domiciled spouse in the divorce action" (Matter of Rochetti v. Rochetti, 236 A.D.2d 543, 544, 653 N.Y.S.2d 676; see Matter of La Duke v. La Duke, 110 A.D.2d 930, 931-932, 487 N.Y.S.2d 178; Matter of Slemons v. Slemons, 28 A.D.2d 634, 280 N.Y.S.2d 276). The record clearly established that the Florida court which dissolved the parties' marriage by a decree dated December 16, 2005, did not have in personam jurisdiction over the former wife. Thus, the petitioner failed to make a prima facie showing of entitlement to relief and the petition was properly denied without a hearing (see Matter of Fein v. Gilchrist, 23 A.D.3d 558, 559, 807 N.Y.S.2d 600; D'Alesio v. D'Alesio, 300 A.D.2d 340, 341, 751 N.Y.S.2d 774).

The petitioner's remaining contention is without merit.

A husband twenty percent of his wifes license with 9 percent interest. Read this case and see how it is done.
Supreme Court, Appellate Division, Fourth Department, New York.

LARRY G. MARTINSON, PLAINTIFF-APPELLANT,

v.

MICHELLE R. MARTINSON, DEFENDANT-RESPONDENT.

September 29, 2006

PRESENT: SCUDDER, J.P., KEHOE, SMITH, PINE, AND HAYES, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from be and the same hereby is modified on the law by vacating the 48 th decretal paragraph and providing that plaintiff is directed to pay defendant $21,472 for her share of plaintiff's enhanced earning capacity, with interest at the rate of 9% per annum from February 4, 2005, and as modified the judgment is affirmed without costs, and the matter is remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the following Memorandum: On appeal from a judgment in an action for divorce and ancillary relief, plaintiff contends that Supreme Court erred in its distribution of certain marital assets, including the parties' tax refund, a tax relief check, and the money remaining in an account set up for the parties' children. It is well settled that the provision in Domestic Relations Law § 236(B)(5)(c) that marital property be "distributed equitably between the parties" does not require equal distribution (see Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034). "Moreover, the trial court is vested with broad discretion in making an equitable distribution of marital property and, absent an abuse of discretion, its determination will not be disturbed" (Bossard v. Bossard, 199 A.D.2d 971, 971). Here, the parties stipulated to the disposition of certain assets, and the record establishes that the court properly considered the factors set forth in Domestic Relations Law § 236(B)(5)(d), including defendant's waste of marital assets, in distributing the named assets. Plaintiff failed to establish that the court abused its discretion in distributing those assets.

We agree with plaintiff, however, that the court erred in awarding defendant 40% of the value of the marital portion of plaintiff's enhanced earning capacity arising from plaintiff's obtaining, during the marriage, a license to practice as a physician's assistant. In light of defendant's modest contribution to the attainment of plaintiff's license, we conclude that the court should have awarded defendant only 20% of the value of the marital portion of plaintiff's enhanced earning capacity (see Schiffmacher v. Schiffmacher, 21 AD3d 1386, 1387). Consequently, we modify the judgment by vacating the 48 th decretal paragraph and providing that plaintiff is directed to pay defendant $21,472 for her share of plaintiff's enhanced earning capacity, with interest at the rate of 9% per annum from February 4, 2005, and we remit the matter to Supreme Court to determine the duration and minimum amount to be paid per month on that amount.

All concur except Hayes, J., who is not participating, and Kehoe J., who dissents in part and votes to affirm in the following Memorandum: I respectfully dissent in part. In my view, Supreme Court did not abuse or improvidently exercise its discretion in awarding defendant a 40% share of the marital portion of the enhanced earning capacity attributable to plaintiff's attainment during the marriage of two educational degrees and licensing as a physician's assistant. The Domestic Relations Law mandates that the equitable distribution of marital assets be based on the circumstances of the case and directs the trial court to consider a number of statutory factors, including the income and property of each party at the time of marriage and at the time of commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including "services as a spouse, parent, wage earner and homemaker" (Domestic Relations Law § 236[B] [5][d]; see Holterman v. Holterman, 3 NY3d 1, 7-8). The enumeration of those factors bespeaks the Legislature's recognition of marriage as an economic partnership with a significant noneconomic component (see generally Price v. Price, 113 A.D.2d 299, 304-306, affd 69 N.Y.2d 8; Capasso v. Capasso, 119 A.D.2d 268, 274, citing O'Brien v. O'Brien, 66 N.Y.2d 576, 585). Those considerations "are particularly relevant when evaluating the parties' respective contributions to" one spouse's "attainment of a professional license," which "is marital property subject to equitable distribution" (Holterman, 3 NY3d at 8). The overriding "principle [is] that both parties in a matrimonial action are entitled to fundamental fairness in the allocation of marital assets, and that the economic and noneconomic contributions of each spouse are to be taken into account. Trial courts that examine the statutory factors are granted substantial discretion in determining the extent to which the distribution of marital property, including enhanced earnings attributable to a professional license, will be equitable" (id.). Moreover, as the majority notes, "absent an abuse of discretion, [the trial court's] determination will not be disturbed" (Bossard v. Bossard, 199 A.D.2d 971, 971; see Holterman, 3 NY3d at 8).

"Here, [the court] issued a careful, comprehensive decision addressing all relevant factors" (Holterman, 3 NY3d at 8), including the fact that the parties' 19-year marriage had produced five children, three of whom remained unemancipated; that defendant had given up her career as a licensed cosmetologist to stay at home with the children throughout the marriage, in keeping with the parties' Mormon religious beliefs; that the majority of plaintiff's schooling, a total of 91 credit hours leading to plaintiff's attainment of bachelor's and master's degrees as a physician's assistant, was completed during the marriage; and that defendant had waived her right to receive maintenance. In support of its determination, the court also might have cited the fact that plaintiff had joined the U.S. Army as an enlisted man 2 1/2 years after the marriage but by the time of commencement of the divorce action had attained the rank of Captain; that plaintiff's choice of a military career had necessitated 14 moves by the family in 19 years; that plaintiff's military career culminated in a six-month deployment to Iraq just prior to commencement of the divorce action; that plaintiff's education during the marriage was paid for by the Army, a form of intangible compensation that otherwise would constitute marital property; and that defendant, in addition to assuming a disproportionate share of the household and child rearing tasks, typed plaintiff's papers for college and graduate school. It also must be noted that, in awarding defendant only 40% of the marital portion (with a determined value of $107,360) of plaintiff's total enhanced earning capacity (with a stipulated value of $176,000), the court actually awarded defendant only about one quarter of the total enhanced earning capacity. In halving the award to defendant, the majority effectively awards her only a one-eighth interest in the total enhanced earning capacity of $176,000, despite the fact that both educational degrees and the physician's assistant license were earned during the marriage.

In my view, the determination of the court, much more so than the decision of the majority, accomplishes the "core purpose of the O'Brien rule: to assure the nontitled spouse an equitable share of the license to which that spouse's efforts contributed" (McSparron v. McSparron, 87 N.Y.2d 275, 282, rearg dismissed 88 N.Y.2d 916). I therefore conclude that the court properly awarded defendant 40% of the enhanced earning capacity achieved by plaintiff during the marriage (see Holterman, 3 NY3d at 7-9 [awarding nontitled spouse 35% of other spouse's enhanced earning capacity]; Lipsky v. Lipsky, 276 A.D.2d 753[50%]; Reczek v. Reczek, 239 A.D.2d 867, 868[35%], abrogated on other grounds by Corasanti v Corasanti, 296 A.D.2d 831; see also Krigsman v. Krigsman, 288 A.D.2d 189, 191[50%]; McNally v. McNally, 251 A.D.2d 302, 303[50%]; Vainchenker v. Vainchenker, 242 A.D.2d 620, 621 [50%] ).