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I ran across this article The Validity of Prenuptial AgreementsJoel R. Brandes New York Law Journal
December 22, 1998 PROPERTY SETTLEMENTS are encouraged as consistent with the public policy of New York. Such settlements in prenuptial agreements must be fair and reasonable and not tainted with fraud, misrepresentation, coercion or imposition. In the absence of such taints, these agreements have been presumed to be valid, and the party alleging taints or defects has had the burden of proof to establish their invalidity.1 Domestic Relations Law (DRL) §236,[B](3), enacted in 1980, attempted to modernize the New York law dealing with prenuptial agreements and with agreements made between spouses during their marriage. Such agreements are commonly referred to as a "stipulation of settlement," "property settlement," "settlement agreement" or "opting out agreement" (referred to as "settlement agreements" in this article).
The subject matter of such agreements includes:
1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of §5-311 of the General Obligations Law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for custody, care, education and maintenance of any child of the parties.
Where a settlement agreement has been incorporated into a judgment that is valid on its face,2 collateral attack is inhibited. Representation by experienced counsel3 and ratification4 of the agreement, or laches,5 also inhibit or bar subsequent challenges to the validity of the agreement. The Issue of Disclosure Perhaps the most intriguing issue relates to nondisclosure. During marriage spouses are subject to the special duties imposed by their confidential relationship. As noted in Christian v. Christian,6 those fiduciary duties are imposed independently of any statute. In addition, the spirit and the letter of the Equitable Distribution Law (EDL) requires full disclosure between spouses, and to "opt out" of the statutory system there must be a full and complete disclosure of all financial data unless, perhaps, there is an intelligent waiver. Nevertheless, it is a perilous undertaking and it invites trouble. Courts ordinarily are wary of waivers of full disclosure. Matrimonial attorneys often insert clauses in settlement agreements that contain self-serving declarations that each party has made full financial disclosure to the other; that their respective counsel has fully explained to each of them the legal and practical effect of the terms of the agreement, and that the circumstances surrounding the preparation and execution of the agreement were fair, and not the result of fraud, duress or undue influence.7 If "unconscionability" is established, such clauses certainly have limited, if any, effect. But if the settlement agreement is fair on its face, and especially if the complaining party was represented by independent counsel, such clauses are effective and, at a minimum, place a heavy burden on the party who asserts invalidity.8 Statements of net worth are mandatory and liberal discovery procedures on financial matters are available. This obligation regarding disclosure also applies to the bargaining stage prior to reaching an agreement. Since the settlement agreement may serve in lieu of valuation and distribution by the court, it is imperative that the parties know what they are doing and what is at stake. In the past, prenuptial agreements were treated differently from settlement agreements. Courts sustained the validity of a prenuptial agreement where there was an intelligent waiver and full disclosure was not made. In Hoffman v. Hoffman,9 the court held that a failure to disclose the full extent of a party's assets does not in itself constitute such fraud or overreaching that would invalidate a prenuptial agreement, where no representations were made and thus none were relied upon. In Matter of Greiff 10 the Court of Appeals extended the concept of "fiduciary relationships" to engaged parties when they execute a prenuptial agreement, and it held that the existence of certain "exceptional circumstances" can warrant a shift of the burden of proof bearing on its legality and enforceability. Appellant Helen Greiff married Herman Greiff in 1988 when they were 65 and 77 years of age, respectively. They entered into reciprocal prenuptial agreements in which each expressed the usual waiver of the statutory right of election as against the estate of the other. The husband died three months after the marriage, leaving a will that made no provision for his surviving spouse. The will left the entire estate to his children from a prior marriage. When Mrs. Greiff filed a petition seeking a statutory elective share of the estate, Mr. Greiff's children countered with the two prenuptial agreements, which they claimed precluded Mrs. Greiff from exercising a right of election against her husband's estate. 'Influence and Advantage' The Surrogate found, after a trial, that the husband "was in a position of great influence and advantage" in his relationship with his wife to be, and that he was able to subordinate her interests, to her prejudice and detriment. It further determined that the husband "exercised bad faith, unfair and inequitable dealings, undue influence and overreaching when he induced the petitioner to sign the proffered antenuptial agreements," particularly noting that the husband "selected and paid for" the wife's attorney. The Surrogate's Court invalidated the prenuptial agreements and granted a statutory elective share of decedent's estate to the surviving spouse. The Appellate Division reversed on the law, declaring that Mrs. Greiff had failed to establish that her execution of the prenuptial agreements was procured through her then-fiance's fraud or overreaching. The Court of Appeals granted the widow leave to appeal, and it reversed. It stated the general rule that a party seeking to vitiate a contract on the ground of fraud bears the burden of proving the impediment attributable to the proponent seeking enforcement.11 It said that this rule also applies generally to controversies involving prenuptial agreements.12 However, it noted that it has held that where parties to an agreement find or place themselves in a relationship of trust and confidence at the time of execution, a special burden may be shifted to the party in whom the trust is reposed to disprove fraud or overreaching, citing, among other things, Christian v. Christian.13 As an illustration, the Court referred to Matter of Gordon,14 where the administrator of the decedent's estate challenged the transfer of funds by the decedent, one month before her death, to the nursing home in which she was a patient. It pointed out that when it invalidated the transfer it stated: Whenever * * * the relations between the contracting parties appear to be of such a character as to render it certain that * * * either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, * * * it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood" * * * .
The court held that this rule can be applied to the execution of prenuptial agreements. It emphasized, however, that the shift of the burden of proof is neither presumptively applicable nor precluded. The court noted that its 1894 decision in Graham v. Graham 15 has been read to hold that prenuptial agreements were presumptively fraudulent because of the nature of the relationship between prospective spouses. Its more recent decision in Matter of Phillips,16 on the other hand, was urged to suggest that prenuptial agreements may never be subject to burden-shifting, regardless of the relationship of the parties at the time of execution and the evidence of their respective conduct. Equal Footing The Court pointed out that Graham was decided more than 100 years ago, and it indicated that prospective spouses stand in a relationship of confidence that necessarily casts doubt on or requires strict scrutiny concerning the validity of a prenuptial agreement. Graham was based on the outdated premise that the man "naturally" had disproportionate influence over the woman he was to marry. In 1998, society and the law reflect a more progressive view. They now reject the assumption of inherent inequality between men and women, in favor of a fairer, realistic appreciation of cultural and economic realities. The law now starts marital partners off on an equal plane. Noting that Phillips "tugs in the opposite direction" from Graham, the court found that it did not upset the principles enunciated in Graham, because while holding that prenuptial agreements are not enveloped by a presumption of fraud, the Court in Phillips indicated that some extra leverage could arise from the "circumstances in which the agreement was proposed." It distinguished this language in Phillips from the holding in Graham, finding it was broad enough to encompass the unique character of the bond between prospective spouses whose relationship, by its nature, is "permeated with trust, confidence, honesty and reliance." The Court of Appeals held that the spouse who contests the validity of a prenuptial agreement bears the burden to establish a "fact based, particularized inequality" before the burden shifts to the party seeking to uphold the validity of the agreement to disprove fraud or overreaching. The court thus eliminated the presumption of fraud enunciated in Graham and adopted a "particularized and exceptional scrutiny" test. As the Appellate Division did not apply these legal principles, the Court remitted the case to it for a new determination. It directed that the question for it to determine is "whether, based on all of the relevant evidence and standards, the nature of the relationship between the couple at the time they executed their prenuptial agreements rose to the level to shift the burden to the proponents of the agreements to prove freedom from fraud, deception or undue influence." Greiff demonstrates that the issue is one of fairness in the negotiations, and that, like beauty, may lie in the eyes of the beholder. Prior to this determination, the intermediate appellate courts upheld antenuptial agreements not tainted by fraud, without an affirmative obligation on the part of both parties to fully disclose their finances and without consideration of whether the terms of the agreement were fair when made. These cases did not reflect the new public policy of New York as enunciated in the Christian case and in the EDL, but adopted the policy that existed prior to July 19, 1980. Greiff apparently changes all of this and elevates the status of being engaged to its rightful place as a fiduciary relationship. ---------------------- Notes
(1) Matter of Phillips, 293 NY 483, 58 NE2d 504, reh den 294 NY 662, 60 NE2d 389. (2) Re Estate of Miller, 97 AD2d 581; Lambert v. Lambert, 530 NYS2d 223. (3) See Stoerchle v. Stoerchle, 101 AD2d 831; Richardson v. Richardson, 142 AD2d 563. (4) See Stoerchle v. Stoerchle, supra, Glaser v. Glaser, 127 AD2d 741; McDougall v. McDougall, 129 AD2d 685. (5) See Rubinstein v. Rubinstein, 130 AD2d 567. (6) 42 NY2d 63. (7) See Wile v. Wile (2d Dept) 100 AD2d 932, which attached significance to such clauses. (8) Wile v. Wile, supra. Levine v. Levine, 56 NY2d 42 (1982). (9) (3d Dept) 100 AD2d 704. (10) __ NY2d __ , 98 N.Y. Int. 0130. Oct. 27, 1998. (11) Matter of Gordon v. Bialystoker Ctr. and Bikur Cholim, 45 NY2d 692. (12) Matter of Phillips, supra. (13) 42 NY2d 63 (1977). (14) Supra, N. 11. (15) 143 NY 573, 579, 580. (16) Supra. *********
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If you are fighting the grounds for a divorce, make sure that your answer to the complaint contains a request for child support and maitenancen. A recent decision by a respected justice in New York explains the logic...
 
66.11.15 - - - AF v. SF A.F. v. S.F., (Sup. Ct., New York Co., Beeler, J)(U)(2007 WL 685847)(2007 N.Y. Slip Op. 50426)(Mar. 07, 2007): NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. Supreme Court, New York County, New York. A.F., Plaintiff, v. S.F., Defendant. March 7, 2007 HAROLD B. BEELER, J. Plaintiff-husband moves by Order to Show Cause pursuant to CPLR 3217(b) to discontinue an action for divorce. Defendant-wife does not oppose the discontinuance of plaintiff's cause of action for constructive abandonment, provided that the Court retains jurisdiction over the ancillary relief requested in her answer including spousal maintenance, child support and custody of the children. BACKGROUND The parties were married on June 4, 1998 and have three young sons, ages 7, 5, and 3. Plaintiff, in partnership with his father and brother, owns a securities trading firm. His income in 2004 was almost $5 million and his net worth is stated at over $17 million. Defendant is a stay-at-home mother. The parties separated in November 2005. On June 14, 2006, plaintiff commenced this action for divorce by filing a Summons with Notice. On June 21, 2006, defendant's counsel served a Notice of Appearance and Demand for a complaint. A verified complaint was filed on July 11, 2006 alleging as grounds constructive abandonment by the defendant. In her verified answer, dated September 11, 2006, defendant denied the material allegations of the complaint and affirmatively sought the ancillary relief of custody of the children with access by the plaintiff, spousal maintenance and child support. She did not, however, specifically interpose a counterclaim for divorce. During the pendency of this action, defendant has made no motion for pendente lite financial relief in any form. Plaintiff has voluntarily given defendant $100,000 in legal fees, $20,000 in expert fees and $50,000 monthly in combined spousal and child support, although defendant has recently complained that plaintiff has unilaterally cut back on his support payments and not paid her counsel's and expert's current fees. A preliminary conference was held on July 11, 2006, at which time all issues including fault were marked unresolved by the parties. At this conference and, thereafter, until the filing of the instant motion, the Court's focus in this action has been almost exclusively centered on issues concerning custody and access of the children. On July 12, 2006, the Court ordered a summer access schedule which differed from the schedule for the non-summer months which the parties had previously voluntarily agreed upon. The summer schedule expanded plaintiff's weekend access to the children after taking into account that plaintiff would lose his weekday time with them because they would be spending their whole summer, as was their custom, in the parties' East Hampton home. At the September 11, 2006 compliance conference, the parties disagreed over the access schedule for the coming school year. Plaintiff argued for an access schedule that expanded on the schedule that had been in effect during the past school year. His proposed schedule would increase his access to the children from five out of every fourteen days to equal time with them. Defendant objected to any such increase arguing that the constant transitions were not in the best interest of the children. The parties also disagreed over whether the children should continue in the therapy that all three entered to help them adjust to their parents's separation. After extensive consultation with and guidance from the Court, the parties entered into a so-ordered stipulation whereby they agreed that for non-holiday periods the access schedule from the past school year would continue for the coming school year. They also agreed on an access schedule for holidays and vacations through January 15, 2007, the next scheduled appearance date for the case. The parties also stipulated that their eldest son would continue in therapy, while the younger boys would discontinue the therapy pending further order of the Court or agreement of the parties and that the children's therapist would contact the Court concerning the advisability of continued treatment for the children. The parties further agreed to the appointment of a guardian ad litem for the three children in view of the high level of tension and conflict over the issues of access and therapy for the children. At the same compliance conference, defendant reiterated her refusal to consent to grounds for the divorce. Her attorney claimed that defendant lacked sufficient discovery with respect to the value of plaintiff's business to determine whether a divorce was in her best interest and, moreover, that plaintiff's cause of action for constructive abandonment was not genuine inasmuch as plaintiff himself had abandoned the family to have an affair with another woman. In light of the absence of agreement over grounds, the Court scheduled a fault trial for January 15, 2007 and stayed further discovery until completion thereof. Sometime in mid-November 2006, defendant served a fault trial subpoena on K. C., the woman with whom plaintiff was allegedly having an affair, who had been a close friend of defendant's during this marriage and who is going though her own divorce. On November 20, 2006, plaintiff's counsel wrote to defendant's counsel requesting that he stipulate to a discontinuance of plaintiff's action for divorce to avoid "incurring the unnecessary expense and subjecting the parties' children to the inevitable rancor that would be the result of a fault trial." In response, on November 22, 2006, defendant's counsel refused to stipulate to the discontinuance, insisting that plaintiff was "withdrawing the complaint not because of any concern for the children, but because it is a pack of lies that no fact finder would buy." Thereafter, on December 8, 2006, defendant filed a motion by Order to Show Cause to direct plaintiff to cease having the parties' three children spend time with K.C. and her children while the boys are with the plaintiff pursuant to the access schedule. Six days later, on December 14, 2006, plaintiff filed the instant Order to Show Cause for a discontinuance of the divorce action. Both motions were returnable on January 12, 2007, on which date the Court granted defendant's "anti-blending" motion and reserved judgment on plaintiff's discontinuance application. DISCONTINUANCE PURSUANT TO CPLR 3217(B) After issue has been joined and in the absence of an agreed-upon stipulation to discontinue, CPLR 3217(b) requires a plaintiff to obtain the permission of the court to discontinue an action, upon terms and conditions that the court deems proper. While the decision to grant a discontinuance is within the sound discretion of the court, discontinuance is normally allowed unless undue prejudice to the defendant would result therefrom. See Tucker v. Tucker, 55 N.Y.2d 378, 383 (1982). A court should grant a discontinuance unless special circumstances exist which outweigh a party's right to not be compelled to continue a litigation which it had voluntarily commenced. Hockmeyer v. Bloch, 159 A.D.2d 444 (1st Dep't 1990) ("a party cannot be compelled to litigate, absent special circumstances"); Zuckerman v. Zuckerman, 105 A.D.2d 782 (2nd Dep't 1984) ("in the absence of special circumstances, a party should not be compelled to litigate against his or her wishes"). Plaintiff's Position Not surprisingly, the parties disagree over whether a discontinuance would result in substantial unfairness to the defendant. Plaintiff contends that the action is barely six months old, that no pendente lite financial relief has been requested or ordered and, in any event, in light of plaintiff's decision to withdraw his divorce cause of action and in the absence of a pending counterclaim no legal basis exists for the Court's continuing jurisdiction. If need be, according to plaintiff, defendant can resort to Family Court to obtain the same relief she is seeking here, namely maintenance, custody and child support. Defendant's Position In contrast, defendant argues that she would suffer significant financial penalties in the event she had to initiate her own action in Family Court, including the inability to obtain retroactive maintenance and child support and to recover legal and expert fees already expended in this action. More importantly, she points to the instability and disruption in the lives of the children in the event she is relegated to Family Court with its attendant delay and where a new guardian ad litem would have to be appointed. Moreover, she asserts that the absence of a counterclaim for divorce does not bar the Court from addressing her claims for support and custody that she affirmatively sought in her answer because the Court retains independent jurisdiction over these issues regardless of whether a cause of action for divorce is denied after trial or discontinued on application of the plaintiff. Finally, defendant's opposition to the motion is supported by the guardian ad litem who represents that she has already conducted an extensive investigation of the custodial and visitation issues and believes that these matters should remain before and be decided by this Court. Discussion At the outset, the Court rejects plaintiff's contention that defendant's failure to assert a counterclaim for divorce in and of itself defeats her opposition to the motion to discontinue. See Schneider v. Schneider, 32 A.D.2d 630 (1st Dep't 1969) (Motion to discontinue denied despite the failure to plead a counterclaim where discontinuance would result in defendant's loss of support previously awarded by the court). In a typical civil action, the right to withdraw a claim is virtually unlimited since only the interests of the plaintiff are ordinarily affected by a discontinuance. However, in a matrimonial case, where a defendant frequently seeks affirmative relief in the answer in the form of support, custody or otherwise, a discontinuance can unduly prejudice these rights, notwithstanding the absence of a counterclaim for divorce. As articulated in Palmer v. Palmer, 62 Misc.2d 73, 77-78 (Fam Ct, Duchess County 1969) in the related context of a child custody litigation: [T]he right to discontinue ceases to be absolute when certain intervening interests and rights become involved in the action or proceeding. It has long been the rule that when, as here, the party against whom relief is sought himself seeks affirmative relief by way or counterclaim or otherwise, the court should not permit the party who instituted the action in the first instance to unilaterally discontinue the action. (Emphasis added). Moreover, the importance of resolving ancillary issues in a matrimonial action is recognized by the line of cases which hold that a court retains jurisdiction over such issues even where a cause of action for divorce has not been made out. See e.g. Gunn v. Gunn, 143 A.D.2d 393 (2d Dep't 1988) (Court could properly determine issues of custody, child support, maintenance and attorneys' fees even though no judgment entered dissolving the marriage); Mauletta v. Mauletta, 90 A.D.2d 535 (2d Dep't 1982) (Although grounds for divorce were not established, the court could determine questions of child support, exclusive possession of the marital residence and maintenance); Forbush v. Forbush, 115 A.D.2d 335 (4th Dep't 1985) (Court has authority to order permanent maintenance notwithstanding failure of proof on issue of fault). CONCLUSIONS OF LAW The Court finds that plaintiff has seriously underestimated the consequences which would arise in the event of a discontinuance. While defendant's claim of financial prejudice can largely be resolved by conditioning any order for discontinuance on payment by plaintiff of any unpaid attorney or expert fees (see e.g. Mancinelli v. Mancinelli, 228 A.D.2d 747 (3d Dep't 1996) (Abuse of discretion to allow discontinuance without awarding defendant counsel fees)), the impact on the parties' children of a withdrawal of the entire action is not so easily remedied. In this regard, courts have been especially vigilant in ensuring that the best interest of the children are not undermined by the granting of a discontinuance. See e.g. People ex rel. Weissman v. Weissman, 50 A.D.2d 989, 990 (3d Dep't 1975) ("This [habeas corpus] proceeding involves more than the personal rights of the parties. It involves the custody of the child. The welfare of the child is the prime concern of the court and justified the court in denying appellant's application to discontinue"); Julie J. v. Edwin A., 86 Misc.2d 882, 883 (Fam Ct, New York County 1976) ("The welfare of the infant child [which] is of paramount concern" warranted denial of motion to withdraw paternity proceeding); Stien v. Stien, 130 Misc.2d 609 (Fam Ct, Westchester County 1985) (Discontinuance of custody petition in Family Court in favor of a new matrimonial action in Supreme Court denied as it would result in the loss of the child's law guardian and prejudice the early disposition of the custody question). The welfare of the three boys would likewise be compromised by a discontinuance of the instant action. Within the space of only six months, this Court has been called upon on three separate occasions to address matters concerning the welfare of these children. The current summer, school year and holiday access schedules were agreed to by the parties only after this Court expended considerable time and effort mediating their conflicting concerns. It is not overly pessimistic to predict that these temporary schedules will likely be subject to attack by one party or the other in light of their basic disagreements over the amount of access time and the impact of transitions on the children. The advisability of the children continuing in therapy also remains an open issue as does the "blending" of the parties' children and the children of K.C. if, as is not unlikely, plaintiff and K.C. continue their relationship. Most importantly, a discontinuance of the entire action will result in the loss of Wendy Luger, the guardian ad litem, who has earned the respect of both parties by her commitment to the welfare of their children and by her diligence in representing their interests before this Court. While the Court recognizes it cannot compel plaintiff to go forward with his cause of action for divorce, CPLR 3217(b) authorizes a court to order a discontinuance "upon terms and conditions, as the court deems proper." Accordingly, the Court is conditioning discontinuance of plaintiff's cause of action upon the Court's retention of jurisdiction over the issue of custody, and in the interest of judicial economy, all other requests for relief asserted in defendant's answer. This constitutes the decision and order of the Court.
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A Post nuptial agreement is basically a settlement agreement. However, the Courts in New York will require that the agreement is fair. Many times, when one spouse feels guilty they will sign anything. In the following case this is exactly what happened. Remember, before you sign something, retained an experienced New York Divorce Attorney, if it is patently unfair, it will never work.
66.8.24 - - - Darrin Darrin v. Darrin, --- A.D.3d ---, --- N.Y.S.2d --- (Third Dept. 2007)(2007 WL 1555892)(2007 N.Y. Slip Op. 04558)(May 31, 2007): Susan C. DARRIN, Appellant, v. David DARRIN, Respondent. May 31, 2007
Before: CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and KANE, JJ. CARDONA, P.J. Appeal from an order of the Supreme Court (Teresi, J.), entered November 28, 2006 in Albany County, which granted defendant's motion for partial summary judgment finding the prenuptial agreement executed by the parties to be valid and enforceable. On July 20, 1987, five days before their wedding ceremony, plaintiff and defendant entered into a prenuptial agreement wherein, among other things, defendant disclosed his financial status and acknowledged his future potential interest in a substantial family trust. In accordance with certain provisions of the agreement, defendant was to make fixed monthly payments to plaintiff which would increase upon their tenth wedding anniversary and, in the event of divorce, a cash settlement based upon the length of the marriage would be paid to plaintiff. Given these monthly payments and cash settlement, plaintiff waived, among other things, all rights to spousal support, maintenance and equitable distribution in the event the parties divorced. Thereafter, a July 25, 1987 wedding ceremony was held, however, due to a problem with the filing of the marriage certificate, the parties were not officially married until a subsequent ceremony in November 1987. In April 2005, plaintiff commenced this action seeking a divorce as well as, among other things, maintenance and equitable distribution. Defendant moved for partial summary judgment declaring the prenuptial agreement to be valid and enforceable. In opposition, plaintiff alleged that the agreement was procured through fraud, duress and overreaching. Supreme Court granted defendant's motion, resulting in this appeal. We find no error in granting defendant partial summary judgment upholding the validity and enforceability of the parties' prenuptial agreement. It is well settled that a prenuptial agreement is accorded the same presumption of legality as any other contract (see Matter of Garbade, 221 A.D.2d 844, 845 [1995], lv denied 88 N.Y.2d 803 [1996]; Brassey v. Brassey, 154 A.D.2d 293, 294-295 [1989] ) 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" (Korngold v. Korngold, 26 AD3d 358, 358 [2006], lv dismissed 7 NY3d 861 [2006]; see Costanza v. Costanza, 199 A.D.2d 988, 989 [1993] ). " ?[I]n the absence of proof of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed.... Such a presumption [of fraud] must have as its basis evidence of overreaching-the concealment of facts, misrepresentation or some other form of deception? " (Matter of Sunshine v. Sunshine, 51 A.D.2d 326, 328 [1976], affd 40 N.Y.2d 875 [1976], quoting Matter of Phillips, 293 N.Y. 483, 491 [1944] ). Furthermore, where the spouse opposing the validity of the agreement fails to raise any triable issue of fact, the proponent of the agreement is entitled to summary judgment (see Tremont v. Tremont, 35 AD3d 1046, 1047 [2006] ). Even accepting plaintiff's allegations as true, a review of the record herein fails to demonstrate any triable issues of fact with respect to fraud, duress or overreaching in connection with the execution of the prenuptial agreement. With respect to plaintiff's allegation of duress, the substantial financial disparity between the parties was fully disclosed at the time the agreement was executed. Moreover, despite the fact that plaintiff was unemployed at the time the agreement was executed and allegedly dependent on defendant's support, there is no evidence that defendant used his wealth as leverage to coerce plaintiff to sign the agreement. Although plaintiff also alleges coercion in the hurried nature of the circumstances surrounding the procurement of the agreement, the record fails to support such a contention, particularly in light of the fact that the parties were not officially married until four months after the agreement was signed. In regard to plaintiff's challenge to the effective and independent representation of her attorney, the conclusory allegations are insufficient to raise a triable issue of fact (see Korngold v. Korngold, supra at 358-359; see also Colello v. Colello, 9 AD3d 855, 858 [2004] ). Turning to plaintiff's allegation of fraud in the inducement as evidenced by defendant's failure to abide by various provisions in the agreement-specifically his failure to increase his monthly payments to her on their tenth anniversary or transfer title to certain property-such allegations relate to defendant's breach of the agreement, not the validity of the agreement itself, and are insufficient to raise a question of fact as to any undisclosed intention on defendant's part not to perform the promises therein at the time the agreement was executed (see Colello v. Colello, supra at 858). Finally, the record does not support plaintiff's contention that the agreement is unconscionable (see Domestic Relations Law ? ? 236[B][3][3]; Colello v. Colello, supra at 859-860; Lounsbury v. Lounsbury, 300 A.D.2d 812, 814 [2002] ). Considering all the provisions of the prenuptial agreement, we cannot say that it was so unfair "as to shock the conscience and confound the judgment of any [person] of common sense" (Lounsbury v. Lounsbury, supra at 814 [internal quotation marks and citations omitted] ). Plaintiff's remaining contentions have been reviewed and found to be without merit. ORDERED that the order is affirmed, without costs. MERCURE, CARPINELLO, MUGGLIN and KANE, JJ., concur.
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Pre nupts are valid, and it is difficult to get them thrown out in Courts in New York, read the following case from the third department..... - - - Darrin Darrin v. Darrin, --- A.D.3d ---, --- N.Y.S.2d --- (Third Dept. 2007)(2007 WL 1555892)(2007 N.Y. Slip Op. 04558)(May 31, 2007): Susan C. DARRIN, Appellant, v. David DARRIN, Respondent. May 31, 2007 Before: CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and KANE, JJ. CARDONA, P.J. Appeal from an order of the Supreme Court (Teresi, J.), entered November 28, 2006 in Albany County, which granted defendant's motion for partial summary judgment finding the prenuptial agreement executed by the parties to be valid and enforceable. On July 20, 1987, five days before their wedding ceremony, plaintiff and defendant entered into a prenuptial agreement wherein, among other things, defendant disclosed his financial status and acknowledged his future potential interest in a substantial family trust. In accordance with certain provisions of the agreement, defendant was to make fixed monthly payments to plaintiff which would increase upon their tenth wedding anniversary and, in the event of divorce, a cash settlement based upon the length of the marriage would be paid to plaintiff. Given these monthly payments and cash settlement, plaintiff waived, among other things, all rights to spousal support, maintenance and equitable distribution in the event the parties divorced. Thereafter, a July 25, 1987 wedding ceremony was held, however, due to a problem with the filing of the marriage certificate, the parties were not officially married until a subsequent ceremony in November 1987. In April 2005, plaintiff commenced this action seeking a divorce as well as, among other things, maintenance and equitable distribution. Defendant moved for partial summary judgment declaring the prenuptial agreement to be valid and enforceable. In opposition, plaintiff alleged that the agreement was procured through fraud, duress and overreaching. Supreme Court granted defendant's motion, resulting in this appeal. We find no error in granting defendant partial summary judgment upholding the validity and enforceability of the parties' prenuptial agreement. It is well settled that a prenuptial agreement is accorded the same presumption of legality as any other contract (see Matter of Garbade, 221 A.D.2d 844, 845 [1995], lv denied 88 N.Y.2d 803 [1996]; Brassey v. Brassey, 154 A.D.2d 293, 294-295 [1989] ) 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" (Korngold v. Korngold, 26 AD3d 358, 358 [2006], lv dismissed 7 NY3d 861 [2006]; see Costanza v. Costanza, 199 A.D.2d 988, 989 [1993] ). " ?[I]n the absence of proof of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed.... Such a presumption [of fraud] must have as its basis evidence of overreaching-the concealment of facts, misrepresentation or some other form of deception? " (Matter of Sunshine v. Sunshine, 51 A.D.2d 326, 328 [1976], affd 40 N.Y.2d 875 [1976], quoting Matter of Phillips, 293 N.Y. 483, 491 [1944] ). Furthermore, where the spouse opposing the validity of the agreement fails to raise any triable issue of fact, the proponent of the agreement is entitled to summary judgment (see Tremont v. Tremont, 35 AD3d 1046, 1047 [2006] ). Even accepting plaintiff's allegations as true, a review of the record herein fails to demonstrate any triable issues of fact with respect to fraud, duress or overreaching in connection with the execution of the prenuptial agreement. With respect to plaintiff's allegation of duress, the substantial financial disparity between the parties was fully disclosed at the time the agreement was executed. Moreover, despite the fact that plaintiff was unemployed at the time the agreement was executed and allegedly dependent on defendant's support, there is no evidence that defendant used his wealth as leverage to coerce plaintiff to sign the agreement. Although plaintiff also alleges coercion in the hurried nature of the circumstances surrounding the procurement of the agreement, the record fails to support such a contention, particularly in light of the fact that the parties were not officially married until four months after the agreement was signed. In regard to plaintiff's challenge to the effective and independent representation of her attorney, the conclusory allegations are insufficient to raise a triable issue of fact (see Korngold v. Korngold, supra at 358-359; see also Colello v. Colello, 9 AD3d 855, 858 [2004] ). Turning to plaintiff's allegation of fraud in the inducement as evidenced by defendant's failure to abide by various provisions in the agreement-specifically his failure to increase his monthly payments to her on their tenth anniversary or transfer title to certain property-such allegations relate to defendant's breach of the agreement, not the validity of the agreement itself, and are insufficient to raise a question of fact as to any undisclosed intention on defendant's part not to perform the promises therein at the time the agreement was executed (see Colello v. Colello, supra at 858). Finally, the record does not support plaintiff's contention that the agreement is unconscionable (see Domestic Relations Law ? ? 236[B][3][3]; Colello v. Colello, supra at 859-860; Lounsbury v. Lounsbury, 300 A.D.2d 812, 814 [2002] ). Considering all the provisions of the prenuptial agreement, we cannot say that it was so unfair "as to shock the conscience and confound the judgment of any [person] of common sense" (Lounsbury v. Lounsbury, supra at 814 [internal quotation marks and citations omitted] ). Plaintiff's remaining contentions have been reviewed and found to be without merit. ORDERED that the order is affirmed, without costs. MERCURE, CARPINELLO, MUGGLIN and KANE, JJ., concur.
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Child support is calculated from a parties last filed federal income tax return. The Court cannot discount the fact that an individual made to much money in the year before determining child supp The Child Support Standards Act (Domestic Relations Law ? 240[1-b]; hereinafter the CSSA) requires the court to establish the parties' basic child support obligation as a function of the income that is, or should have been, reflected on the party's most recently filed income tax return (see Domestic Relations Law ? 240[1-b][b][5][I]; Miller v. Miller, 18 AD3d 629, 631; Bains v.. Bains, 308 A.D.2d 557; McNally v. McNally, 251 A.D.2d 302, 303). Thus, although it is not improper to impute income to a party where the record demonstrates that a party's income tax return does not reflect the party's actual income (see Renzulli v. Renzulli, 251 A.D.2d 482; Murphy-Artale v. Artale, 219 A.D.2d 587) or demonstrated earning potential (see Nebons v. Nebons, 26 AD3d 478; Zabezhanskaya v. Dinhofer, 274 A.D.2d 476; Phillips v. Phillips, 249 A.D.2d 527), the statute does not permit the court to determine a party's income for child support purposes by excluding actual overtime wages (see Parise v. Parise, 13 AD3d 504; Kelley-Milone v. Milone, 256 A.D.2d 554) or by averaging a party's earnings over several years (see Reilich v. Reilich, 275 A.D.2d 929), as the Supreme Court did here. Although the Supreme Court properly found that the plaintiff was capable of earning $35,000 a year based upon her education, past employment, and earnings potential, it was improper to base the child support calculation on an average of the defendant's past earnings. In determining the defendant's income for child support purposes, the Supreme Court correctly deducted from the defendant's income the maintenance he is required to pay (see Thoma v. Thoma, 21 AD3d 1080, 1082; Chalif v. Chalif, 298 A.D.2d 348, 349), but incorrectly included the maintenance payments in the plaintiff's income (see Shapiro v. Shapiro, 35 AD3d 585; Harrison v. Harrison, 255 A.D.2d 490) and should have provided for a corresponding adjustment in child support upon the expiration of the durational maintenance award (see Domestic Relations Law ? 240[1-b][b][5][vii][c]; Navin v. Navin, 22 AD3d 474; Parise v. Parise, supra; Rohrs v. Rohrs, 297 A.D.2d 317, 318; Lee v. Lee, 18 AD3d 508, 509; Smith v. Smith, 1 AD3d 870). Finally, the Supreme Court did not articulate its reasons for awarding child support in addition to basic child support, as it is required to do (see Matter of Cassano v. Cassano, 85 N.Y.2d 649, 654-655; Clerkin v. Clerkin, 304 A.D.2d 784; Wagner v. Dunetz, 295 A.D.2d 501). ort.
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The appellate division in the first department recently ruled in Gross v. Gross that in order to be granted a divorce based on the grounds of cruel treatment in New York, a divorce litigant must have substantial proof. That means, a lawyer must come to trial prepared and have evidence to submit to the Court. Otherwise, you are just wasting your time. Read this recent case and you will be amazed at how tough it is to get divorced in New York
[*1]Carol Gross, Plaintiff-Respondent,
v
Jerome Gross, Defendant-Appellant. Order, Supreme Court, New York County (Joan B. Lobis, J.), entered February 21, 2006, which granted plaintiff a judgment of divorce on the ground of cruel and inhuman treatment, unanimously reversed, on the law, without costs, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. "To obtain a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law § 170[1]), the plaintiff must show serious misconduct, not mere incompatibility, i.e., a course of conduct by the defendant that is harmful to the plaintiff's physical or mental health and makes cohabitation unsafe or improper (Brady v Brady, 64 NY2d 339, 343 [1985])" (Shou-Tsung Lin v Straub, 282 AD2d 234 [2001]). Moreover, in a marriage of long duration a "high degree" of proof of cruel and inhuman treatment is required (Palin v Palin, 213 AD2d 707 [1995], citing Brady, supra; Hessen v Hessen, 33 NY2d 406 [1974]). Plaintiff was asked at trial whether defendant had ever "physically force[d] himself on [her] sexually." In response, plaintiff testified that "I would have to say yes. It's only one time that, really where he hurt me." Apparently by way of explanation, plaintiff went on to state that defendant "[r]ammed [her] up against the wall" in the bathroom of their residence. Plaintiff did not elaborate in any other way about what she meant in stating that defendant had "force[d] himself on [her] sexually." In its vagueness and generality, this testimony could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious. Moreover, plaintiff offered no evidence that she had sustained any injuries as a result of this incident (see generally Palin, supra [plaintiff in marriage of long duration required to satisfy a high degree of proof of cruel and inhuman treatment]). To the contrary, she testified on cross-examination that she did not suffer any physical injuries as a result of the incident. Plaintiff also testified that defendant, on many occasions, "physically grabbed [her]." When asked to describe how defendant "grabbed" her, plaintiff stated: "[h]e'll grab me, he'll pull me down the hall, he'll block me so I can't leave the room, throw me on the bed, push me against the wall." Again, no testimony was elicited from plaintiff that she sustained any injuries as a result of defendant's conduct. Reprehensible and highly offensive behavior, however, is not necessarily sufficient to establish the cruel-and-inhuman- treatment ground for divorce. Plaintiff's uncorroborated [*2]testimony regarding unwanted physical contact was vague and general, and no evidence was adduced from plaintiff regarding the effects, if any, of defendant's conduct on her physical or mental well-being (see Jacob v Jacob, 8 AD3d 725 [2004]; Murphy v Murphy, 257 AD2d 798 [1999]; see also Green v Green, 127 AD2d 983 [1987]; Hage v Hage, 112 AD2d 659 [1985]). In fact, plaintiff denied suffering any injuries as a result of the incident which occurred in the bathroom. Similarly, plaintiff presented no evidence regarding the effects, if any, on her mental well-being of defendant's conduct in entering the bathroom of their residence while plaintiff was showering. While a party seeking a divorce on the ground of cruel and inhuman treatment is not required to produce medical evidence demonstrating the adverse effects of the defendant's behavior (see Ridley v Ridley, 275 AD2d 941 [2000]), the absence of such evidence may be relevant (see Omahen v Omahen, 289 AD2d 890 [2001], lv denied 97 NY2d 613 [2002]). The absence of medical evidence here is particularly telling in light of plaintiff's failure to offer any other evidence tending to demonstrate that defendant's conduct was "harmful to the plaintiff's physical or mental health and makes cohabitation unsafe or improper" (Shou-Tsung Lin, 282 AD2d at 234 [citation omitted]). At bottom, we are left to speculate as to the effects, if any, of defendant's conduct on plaintiff's physical and mental well-being.[FN1] [*3] Other evidence militates against the conclusion that plaintiff satisfied the substantial burden the law imposes upon her. The parties were married for 37 years, eight months at the time of trial, a marriage of long duration requiring a high degree of proof of cruel and inhuman treatment (Palin, supra). Plaintiff and defendant continued to reside together in the marital residence through the trial (see Garver v Garver, 253 AD2d 512 [1998]; see also Palin, supra). Moreover, the parties were able to talk to each other in a civilized manner, have dinner together every night, go out for meals and to the movies and attend social functions (see Walczak v Walczak, 206 AD2d 900 [1994]). In sum, given the long duration of the marriage, the absence of any evidence regarding the effects, if any, of defendant's conduct on plaintiff's physical or mental well-being and the parties' continued residence in the marital home through the trial, the evidence failed to demonstrate, with a high degree of proof, "that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as [to] render[]
it unsafe or improper for the plaintiff to cohabit with the defendant" (Domestic Relations Law § 170[1]).[FN2] THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: MAY 22, 2007 CLERK Footnotes Footnote 1:Compare Echevarria v Echevarria (40 NY2d 262 [1976] [defendant severely beat plaintiff on two occasions causing bruises and black and blue marks on her face, head and body, and made her "too nervous to work"; plaintiff also obtained an order of protection against defendant]); Zhao v Li (300 AD2d 169 [2002] [defendant's serious misconduct, including spreading false rumors of extramarital affairs, affected plaintiff's physical and mental health, including loss of sleep and nervousness that caused him to lose his job], lv dismissed 100 NY2d 615 [2003]); Van Dyke v Van Dyke (273 AD2d 589 [2000] [counterclaiming defendant granted divorce on grounds of cruel and inhuman treatment where plaintiff hit defendant with frying pan causing injury, threw household items at him and, on one occasion, wrestled him to the ground]); Pompa v Pompa (259 AD2d 338 [1999] [defendant mistreated plaintiff over several years by making false, denigrating accusations, threatening violence and participating in one incident of actual violence, causing plaintiff to suffer from anxiety, palpitations and chest pain]); Bailey v Bailey (256 AD2d 1030 [1998] [defendant physically assaulted plaintiff causing facial and other injuries]); Meltzer v Meltzer (255 AD2d 497 [1998] [defendant violently pushed plaintiff to the floor, an act that caused bruising and resulted in police intervention and in the issuance of numerous orders of protection excluding defendant from the marital residence]); Feeney v Feeney (241 AD2d 510 [1997] [defendant's abusive conduct forced plaintiff to flee the marital residence on several occasions, causing her to suffer anxiety and depression]); Stoothoff v Stoothoff (226 AD2d 209 [1996] [defendant denigrated plaintiff, threatened her and committed an act of physical abuse and intimidation, causing her decreased appetite, lost sleep, nausea, stress, and anxiety]). Footnote 2:Plaintiff's testimony regarding defendant's attitude about plaintiff's family and defendant's control of the family finances demonstrates, at most, "strained, unpleasant relations and incompatibility" ( Wikiera v Wikiera, 233 AD2d 896 [1996]).
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In a recent case the appellate division dismissed a divorce action, because the lawyer failed to file the proper paper work in a timely fashion. As the Court pointed out in Farkas v. Farkas, rules about time are meant to be taken seriously. Your lawyer cannot just say he or she was too busy, or there was a mistake by a paralegal. All too often litigants here the Judge say : settle judgment of divorce with findings of fact and conclusions of law within 60 days or your action will be deemed dismissed. Well guess what happened?....... continue reading
Order and judgment (one paper), Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered June 23, 2005, awarding plaintiff $750,000 with interest from August 6, 2003, reversed, on the law, without costs, the judgment vacated and the claim underlying the judgment dismissed as abandoned pursuant to 22 NYCRR 202.48(b). The Court of Appeals has recently made it clear that "statutory time frames - like court-ordered time frames - are not options, they are requirements, to be taken seriously by the parties" (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004] [citation omitted], following Brill v City of New York, 2 NY3d 648 [2004]). Thus, where a statute or court rule prescribes a limited time frame in which to take a procedural step in litigation, and states that a party's failure to act within that time frame will be excused only upon a showing of "good cause," such a showing requires demonstrating, as the dissent puts it, "more . . . than [the] merit . . . [of] the underlying application and a lack of prejudice to the other party." This bench is unanimous in holding that this principle applies in the instant case, in which plaintiff failed to comply with the 60-day time frame for the submission of a judgment to the court for signature (Uniform Rules for Trial Cts [22 NYCRR]
§ 202.48[a], [b]). Because plaintiff has failed to show good cause for her failure to comply with the time frame set forth in the Uniform Rules, we are constrained to reverse and vacate the judgment. The dissent, while agreeing that a showing of "good cause" in this case requires plaintiff to provide "[a] satisfactory explanation' for not meeting the 60-day time frame of 202.48," seems to hold that this standard is satisfied wherever the judgment in question arises from a "complex matrix of litigation" and the adverse party is, colloquially speaking, a "bad guy" (a term that indisputably applies to defendant). In view of these purportedly "unique circumstances," the dissent deems excusable the entirety of plaintiff's four-and-a-half-year delay in submitting a judgment, even though the only reason the dissent can find for plaintiff's last 21 months of delay is that she was actively litigating other issues against defendant, and (due to defendant's wrongful conduct) could not have immediately enforced the judgment in any event. Not only does the dissent not adduce any specific factor that impeded plaintiff's ability to submit [*2]a judgment during the final 21 months of the period at issue, the record contains an admission by plaintiff's counsel that the failure to timely submit a judgment was the result of counsel's own "oversight." In our view, excusing plaintiff's failure to comply with the 60-day time frame under these circumstances is tantamount to abolishing the requirement of "good cause" in any case in which the court finds it distasteful to enforce the rule. We see no warrant for such a departure from the approach mandated by the Court of Appeals' recent case law. This appeal arises from a bitterly contested divorce action that was commenced in 1991. One of the matters at issue was a debt the parties owed to Chemical Bank, based on an equity line of credit defendant husband had obtained by pledging as security the cooperative shares assigned to the marital residence. Chemical Bank commenced a foreclosure action against the parties to recover this debt in 1994. The April 1999 judgment of divorce directed defendant to pay all sums due Chemical Bank within 30 days, failing which "plaintiff [wife] shall be entitled to enter a money judgment against defendant for the total amount due and owing to Chemical Bank without further order." Defendant did not obey the court's directive to pay the parties' debt to Chemical Bank. Accordingly, in June 2000, plaintiff moved for entry of a money judgment in her favor against defendant in the amount of $984,401.17, which was then the amount Chemical Bank claimed the parties owed it. By order dated October 13, 2000, and entered October 17, 2000, Supreme Court granted this application, providing that "plaintiff may settle the judgment thereon." The relevant decretal paragraph further provided that, "[u]pon plaintiff's suggestion, such judgment may contain language staying execution thereon pending determination or other disposition of the Chemical Bank foreclosure action." Although the order granting plaintiff's application for judgment in the Chemical Bank matter was entered on October 17, 2000, it was not until May 2, 2005 - four and a half years later - that plaintiff finally served defendant with a notice of settlement and a proposed judgment. The proposed judgment recited that plaintiff and Chemical Bank had settled the foreclosure action for $750,000.00 on or about August 6, 2003. Apparently based on this development, the proposed judgment was in the principal amount of $750,000.00 (rather than $984,401.17, the amount stated in the October 2000 order), with interest to run from August 6, 2003. Defendant opposed entry of the proposed judgment, arguing that it was untimely under 22 NYCRR 202.48(a), more than 60 days having passed since entry of the order directing settlement of the judgment [FN1]. Therefore, defendant argued, the action should be deemed abandoned pursuant to 22 NYCRR 202.48(b), since plaintiff had not shown "good cause" for the delay [FN2]. On June 20, 2005, the court, without making any finding on the "good cause" issue, signed the judgment [*3]submitted by plaintiff without material amendment, and it was entered on June 23, 2005 [FN3]. Defendant now appeals. Although we agree that there was arguably good cause for delaying settlement of the judgment until after the Chemical Bank foreclosure action was settled in August 2003, the record reveals no justification for plaintiff's failure to submit a judgment for an additional year and nine months thereafter. The relevant portion of the October 2000 order granted plaintiff's application for judgment in the amount of the parties' debt to Chemical Bank, which was being litigated in the foreclosure action. While the foreclosure action was still pending, the amount of the debt to Chemical Bank was undetermined (as recognized by the October 2000 order itself), and, therefore, plaintiff's failure to submit a judgment during the foreclosure action's pendency was at least arguably justifiable. However, once the foreclosure action was settled on or about August 6, 2003, the amount of plaintiff's indebtedness to Chemical Bank was finally determined, and no reason remained for plaintiff to continue to delay her submission of a judgment. As the dissent appears to recognize, plaintiff's failure to comply with the clear mandate of the Uniform Rules is not justified either by the lack of prejudice to defendant from the late submission of the judgment or by the merit of the claim on which the judgment is based (cf. Brill, 2 NY3d at 652 ["good cause" for a late summary judgment motion under CPLR 3212(a) "requires a showing of good cause for the delay in making the motion - a satisfactory explanation for the untimeliness - rather than simply permitting meritorious, nonprejudicial filings, however tardy"]). The dissent nonetheless claims to find the "good cause" required to save plaintiff's judgment in the circumstance that, throughout the period in question, the parties were embroiled in "strenuous legal battles fought simultaneously on a variety of fronts," and that such continuing litigation was necessitated by defendant's bad faith efforts to avoid paying his fully adjudicated legal obligations to plaintiff. While this is certainly true (indeed, defendant does not deny it), it does not change the fact that only the Chemical Bank foreclosure action had any bearing on plaintiff's ability to settle the judgment here at issue. We do not see how the other matters the parties were litigating during this period - however urgent they were, and however inexcusable defendant's misconduct — can be deemed to constitute "good cause" for plaintiff's counsel's failure to submit a judgment within 60 days after the settlement with Chemical Bank (if not earlier). After all, submitting such a judgment required nothing more than performing the essentially ministerial tasks of drafting, serving and filing a one-page notice of settlement and a two-page proposed judgment. We see no basis for the dissent's suggestion that the slight investment of counsel's time and effort that was required to settle the judgment would have interfered with plaintiff's unquestionable "need . . . to focus attention on enforcement [*4]techniques that might actually give [her] some relief." While a judgment submitted for settlement within 60 days after the foreclosure action settled evidently would not have been enforceable immediately upon entry (which, unquestionably, was due to defendant's inexcusable misconduct), that circumstance, in itself, was no reason to wait more than another year and a half before seeking entry of such a judgment. Contrary to the dissent's statement that having a judgment entered at the time the foreclosure action settled would have been "an empty gesture," plaintiff's counsel was then actively seeking avenues for enforcing her extant judgments against defendant, and that search ultimately bore fruit. The implication of the dissent's position is that the 60-day period of 22 NYCRR 202.48 does not begin to run until the plaintiff knows that the judgment will be enforceable. Not only would the dissent thus essentially rewrite § 202.48, it would do so for no apparent good reason of policy, since uncertainty as to the enforceability of a fully litigated judgment is no impediment to settling that judgment. The truth is that plaintiff's failure to timely submit a judgment based on the Chemical Bank debt was simply an instance of law office failure. In fact, plaintiff's counsel essentially has admitted as much. In reply to defendant's opposition to the belated submission of the judgment, plaintiff's counsel, after recounting the course of the parties' contentious litigation over the preceding years, concluded that "any failure to timely submit the Order [sic] for settlement is based on an oversight by the firm filing." In view of Brill and its progeny, however, law office failure clearly does not constitute "good cause" for delay within the meaning of 22 NYCRR 202.48(b). The dissent, while acknowledging that plaintiff's noncompliance with 22 NYCRR 202.48 was the result of law office failure, suggests that such failure may itself constitute "good cause" for delay under the rule. We disagree. CPLR 2005, which provides that courts may exercise their discretion "to excuse delay or default resulting from law office failure," applies, by its express terms, only to applications to extend time to appear or plead under CPLR 3012(d) and to motions for relief from a judgment or order under CPLR 5015(a), neither of which is at issue here. While it is true that the Court of Appeals, in 1989, construed CPLR 2004's "good cause" requirement for an extension of "the time fixed by any statute, rule or order for doing any act" to be satisfied by law office failure (see Tewari v Tsoutsouras, 75 NY2d 1, 12-13 [1989]), the applicability of CPLR 2004 is expressly limited by its opening phrase ("Except where otherwise expressly prescribed by law"). In Tewari, applicable law did not expressly provide otherwise, since, as then-Judge Kaye noted in her concurrence, the underlying statute at issue (CPLR 3406[a]) did "not plainly authorize[] dismissal" for failure to meet the relevant deadline (75 NY2d at 13-14). Here, by contrast, 22 NYCRR 202.48(b) specifically provides that failure to comply with the mandated time frame "shall [not may] be deemed an abandonment of the motion or action" (emphasis added). In addition, the more contemporary Brill and Miceli decisions (which, tellingly, do not cite Tewari) indicate that courts are now expected to take a stricter approach to the enforcement of litigation deadlines (see also Andrea v Arnone, Hedin, Casker, Kennedy & Drake, 5 NY3d 514, 521 [2005] [holding that an action dismissed for noncompliance with discovery orders cannot be recommenced pursuant to CPLR 205(a), notwithstanding that it was "undesirable to punish plaintiffs for the failures of their counsel"]). The strictness mandated by Brill and Miceli necessarily implies that law office failure cannot generally be deemed to constitute "good cause," since, if good cause included law office failure, it would exist in every case of untimeliness [*5]where the opposing parties were not prejudiced by the delay. While the dissent correctly points out that the Brill approach to the determination of "good cause" for untimeliness leads to harsher results in the context of settling a fully litigated judgment than it does in the context of determining the right to summary judgment, the greater severity of the rule's impact in this case (which is regrettable) does not change the fact there was simply no good reason for the last 21 months of plaintiff's delay in seeking settlement of her judgment.[FN4] Given the undisputed merit of plaintiff's claim, and defendant's long history of inequitable conduct, we reverse the judgment with reluctance. Still, we see no way to harmonize the dissent's approach with the current state of the law, given the language of 22 NYCRR 202.48, the Court of Appeals' construction of the term "good cause" in Brill, and the emphasis the Court of Appeals has placed in recent years on the importance of enforcing codified and court ordered litigation deadlines in order to protect "the integrity of our judicial system" (Brill, 2 NY3d at 653). As the Court of Appeals recently stated in a similar context, "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and . . . disregard of deadlines should not and will not be tolerated" (Andrea, 5 NY3d at 521). We could affirm the untimely submitted judgment here only by disregarding the Uniform Rules, and, if this Court will not uphold the Rules, we doubt that trial courts or practicing attorneys can be expected to do so. To reiterate, the Court of Appeals, by its decisions in Brill and subsequent cases, has served notice of its determination not to tolerate the approach taken by the dissent. Given the undeniable equities between the parties, the result to which this leads in the present case is as distasteful to us as it is to the dissent. Nonetheless, this result is what the law, as announced by the Court of Appeals, requires on the undisputed facts of this case. All concur except Saxe, J.P. and Malone, J. who dissent in a memorandum by Saxe, J.P. as follows: SAXE, J.P. (dissenting) [*6] The majority deprives plaintiff ex-wife of the $750,000 judgment she was rightfully granted against defendant ex-husband following his undisputed failure to repay Chemical Bank amounts withdrawn on an equity line of credit, as directed by an earlier court order. It does so on the ground that her lawyer failed to settle the money judgment within 60 days, as required by Uniform Rules for Trial Courts (22 NYCRR) § 202.48, and that as a matter of law she failed to present the requisite showing of good cause required by § 202.48(b) to excuse the delay. It asserts repeatedly that it is, regrettably, constrained to do so by the Court of Appeals' recent pronouncements in Brill v City of New York (2 NY3d 648 [2004]) and Miceli v State Farm Mut. Auto. Ins. Co. (3 NY3d 725 [2004]), regarding compliance with statutory time limits. It ignores the component of discretion in any such determination of whether good cause was established (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]), and in the process announces an absolute rule that under Brill and its progeny, law office failure cannot constitute good cause for the failure to comply with 22 NYCRR 202.48(b). In the unusual circumstances presented here, I would uphold the discretionary determination of the IAS court that good cause for the failure was sufficiently established. In my view, in rejecting the assertion that good cause was shown for plaintiff's failure to settle a judgment within the time frame of 22 NYCRR 202.48, the majority neglects to consider the context of the litigation between these parties, and the overriding need, in view of defendant's undisputed avoidance of all his legal obligations, to focus attention on enforcement techniques that might actually give plaintiff some relief. To the extent counsel acknowledges that the failure was theirs, that law office failure should not be so cavalierly discarded as at least part of the basis for a finding of good cause. Section 202.48(a) of the Uniform Rules requires that proposed orders or judgments be submitted for signature within 60 days after the filing of the underlying decision or order directing such submission or settlement. Subdivision (b) further provides that failure to timely submit the proposed judgment or order shall be deemed an abandonment of the motion, "unless for good cause shown." Both Brill and Miceli involved the 120-day deadline for summary judgment motions imposed by CPLR 3212(a), particularly the provision that such motions may only be made after expiration of the 120-day period "with leave of court on good cause shown" (emphasis added). Brill held, and Miceli reiterated, that " good cause' in CPLR 3212(a) requires a showing of good cause for the delay in making the motion - a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy" (2 NY3d at 652). It should be noted that Brill and Miceli's strict imposition of the "good cause" requirement merely resulted in forcing a party with a meritorious but belated claim for summary relief to proceed to trial; in neither instance did the rule result in the forfeiture of an enormous money judgment granted to a party against an opponent who had thrown every possible obstacle in her path in the course of the litigation. This is not to say that we should ignore the Rule's requirement of good cause for plaintiff's belated entry of a judgment. In fact, while the good cause provision in 22 NYCRR 202.48 does not necessarily require an identical showing to that of CPLR 3212(a), I would agree that even under the former, more needs to be shown than merit to the underlying application and [*7]a lack of prejudice to the other party. A "satisfactory explanation" from plaintiff for not meeting the 60-day time frame of 202.48 is necessary. Here, the complex matrix of litigation between and involving these former spouses is the framework in which such a satisfactory explanation can be found. It also bears noting that the IAS court was intimately familiar with the parties' litigation history, having handled both the matrimonial trial and the related motions. In such circumstances, the IAS court's discretion to determine whether there was good cause for the failure to settle an order within the time frame of the rule is entitled to some deference, and I cannot say that the ruling was an improvident exercise of discretion. Ever since 1990, after a marriage of over thirty years, Ms. Farkas has been involved in ongoing, virtually unending litigation in an attempt to obtain relief to which she is clearly entitled from Mr. Farkas. The original equitable distribution decision issued by the trial court in 1996 described the husband's egregious dissipation of marital assets — including payments to another woman to whom he was "married" in a secret bigamous ceremony while still married to plaintiff — as well as his history of ignoring court orders and judgments and being held in contempt and incarcerated for failure to abide by support directives, while continuing to live in luxury himself through his mother's largesse. With regard to the equity line of credit debt on which Chemical Bank sought to foreclose, the trial decision directed Mr. Farkas to repay it in full, provided Mr. Farkas with two alternatives, and authorized Ms. Farkas, upon Mr. Farkas's failure to comply with either of these options, to enter a money judgment against him for the total amount due and owing to Chemical Bank. It bears emphasis that the judgment entered thereon, dated October 28, 1996, and the amended judgment dated April 14, 1999, authorized Ms. Farkas to enter a money judgment against defendant for the total amount due and owing to Chemical Bank without further order. Three money judgments for support arrears totaling over $700,000 were entered between 1994 and 1998 by Ms. Farkas against Mr. Farkas. She was unable to collect on these judgments, however, because of Mr. Farkas's concealment of income and assets. In June 2000, the trial judge was assigned three post-judgment applications brought by the parties. The first, which the court appropriately denied as "outrageous," was a baseless motion by Mr. Farkas to strike the provision of the judgment allowing Ms. Farkas to move for additional spousal support. The second was Ms. Farkas's application to punish Mr. Farkas for contempt based on his willful failure to pay the judgments for support arrears, which the court granted. The third was Ms. Farkas's motion for entry of a money judgment for $984,401.17, the principal sum said to be due to Chemical Bank, with interest and penalties; she also sought attorneys' fees for the amount she had incurred in defending the foreclosure action brought by Chemical Bank. The order dated October 13, 2000 granted this application as well, directing plaintiff to settle a judgment, and adding that "upon plaintiff's suggestion, such judgment shall contain language staying execution thereon pending determination or other disposition of the Chemical Bank foreclosure action." While no such money judgment was settled, it is undisputed that in the intervening years (1) Ms. Farkas continued to actively litigate the foreclosure action with Chemical Bank until August 6, 2003, when the matter was finally settled, (2) Ms. Farkas was also forced to attempt to resolve her former counsel's claim to $337,506 in fees due and owing from the matrimonial and Chemical Bank actions, in litigation commenced in 2000 and only resolved in April 2005, and (3) Mr. Farkas continued to successfully evade enforcement of all the previously obtained money [*8]judgments against him. By notice of settlement dated May 2, 2005, plaintiff sought to settle a judgment against defendant in the amount of $750,000 with interest from August 6, 2003, for the balance due to Chemical Bank pursuant to stipulation. Defendant's attorney submitted an affirmation in opposition, arguing that the motion must be deemed abandoned pursuant to 22 NYCRR 202.48(b) due to the nearly five-year delay in settling the judgment as directed in the October 13, 2000 order. In response, plaintiff's counsel explained the foregoing litigation history between the parties, and added that while plaintiff had previously been unable to locate defendant, who had fled the jurisdiction, in April 2005 legal action was taken to enforce the outstanding New York money judgments in the Miami-Dade Circuit Court in Florida, where Mr. Farkas had taken up residence. The IAS court, well aware of the full history of the litigation, rejected defendant's position and signed the judgment for entry, necessarily finding that good cause for the delay had been shown. Initially, to characterize the length of the delay as "nearly five years," as defendant does, fails to acknowledge that during much of the time, between October 13, 2000 and August 6, 2003, plaintiff was actively attempting to reduce the amount Chemical Bank would accept in settlement of its claim. Indeed, the majority concedes that there was arguably good cause to refrain from settling the contemplated money judgment from October 13, 2000 through August 6, 2003. But, even after the Chemical Bank litigation was finally settled, plaintiff was left with the greater problem of remaining unable to successfully enforce against defendant the numerous money judgments she already possessed. Entitlement to yet another money judgment against defendant was of less paramount concern than successfully enforcing those she already had, and finding the means to pay her former counsel. Although the majority sees no relevance in the parties' long and tortured litigation history, focusing only on the question of whether plaintiff or her attorney was actually prevented from settling the judgment as directed, to my mind, the foregoing portrait of strenuous legal battles fought simultaneously on a variety of fronts in an effort to achieve real rather than illusory relief, satisfactorily explains counsel's failure to settle a judgment within 60 days of either the underlying order or the settlement of the Chemical Bank foreclosure action. Counsel's efforts were properly focused on enforcing long-outstanding money judgments against a defendant who secreted assets and fled the jurisdiction, particularly since the process of entering yet another money judgment would have been an empty gesture under the circumstances. To the extent that the failure to settle the judgment can be deemed law office failure, Brill and its progeny do not support the majority's assertion that "law office failure clearly does not constitute good cause' for delay within the meaning of 22 NYCRR 202.48." Law office failure is relied upon in numerous contexts to excuse delays and defaults. CPLR 2005 was enacted expressly to authorize courts to exercise discretion to excuse delay or default resulting from law office failure when considering applications to extend time to appear or plead under CPLR 3012 or to vacate a default 5015(a). CPLR 2004, which vests courts with discretion to "extend the time fixed by any statute rule or order for doing any act, upon such terms as may be just and upon good cause shown" [emphasis added], was successfully relied upon where the excuse given for the untimeliness in filing a CPLR 3406(a) notice "amount[ed] to little more than law office failure" (see Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989]; see also Tak Kuen Nagi v Sze Jing Chan (159 AD2d 278 [1990]). Indeed, neglect specifically [*9]characterized as law office failure has been accepted by the Second Department as good cause for a short delay in submitting an order in accordance with 22 NYCRR 202.48 (see Levine v Levine, 179 AD2d 625, 626 [1992]). In all these situations, the failure to take legal action in compliance with a deadline has been excused on the ground of law office failure. These cases do not hold that law office failure is always a viable excuse, merely that it may form the basis of excusing the neglect. Yet, the majority, citing Brill, pronounces that law office failure cannot constitute good cause for delay within the meaning of 22 NYCRR 202.48. Nowhere does Brill so state, however. Indeed, in both Brill and Miceli, the rulings were based on the fact that no excuse for the delay was offered; in both, the movant instead relied solely upon the merits of the motion and the absence of prejudice to the other side. The rule itself is not absolute; it allows for an extension of time for good cause shown. CPLR 2004, which expressly allows for such an extension even after a rule's time limit has expired, is to the same effect. Unlike Brill and Miceli, an explanation for the delay was proffered here. Simple law office failure, and counsel's understandable preoccupation with other, more practical and useful aspects of enforcing plaintiff's rights, explain why counsel neglected to enter a $750,000 money judgment in accordance with the dictates of 22 NYCRR 202.48. Whether this explanation satisfies the "good cause" requirement is a question that calls for an exercise of discretion. The majority's insistence that it is constrained to hold against plaintiff here as a matter of law fails to acknowledge all this. In these circumstances, I would affirm the judgment challenged here. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: MAY 1, 2007 CLERK Footnotes Footnote 1:Subdivision (a) of 22 NYCRR 202.48 provides: "Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted." Footnote 2:Subdivision (b) of 22 NYCRR 202.48 provides: "Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown." Footnote 3:Since the IAS court, in signing the judgment, did not make any finding that "good cause" for the delay had been shown (indeed, the judgment it signed did not include even a conclusory recitation to that effect), there is not, contrary to the dissent's view, any "good cause" finding to which we owe deference. Even if we were to accept the dissent's view that the IAS court should be deemed to have made such a finding by necessary implication, sub silentio, the Court of Appeals' jurisprudence in this area establishes that, in certain cases, "good cause" for delay may be absent as a matter of law. As discussed below, we believe that this is such a case. Footnote 4:The dissent, in suggesting that Brill and Miceli are distinguishable in that "no excuse for the delay was offered" in those cases, overlooks that here, too, the only "excuse" established by the record for the last 21 months of plaintiff's failure to submit a judgment is her lawyers' "oversight." Again, if law office failure constituted "good cause" for granting relief from the consequences of untimeliness, an excuse for the delay would exist in every case. The dissent's apparent view that discretion invariably exists to deem law office failure to constitute good cause is inconsistent with the holding of Brill and Miceli that, where the only explanation for the delay is law office failure, good cause is absent as a matter of law.
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02 | 14 | 2007 Posted By Michael Sherman  Step 2B - Determine what you oweWe are still on Step 2 of Preparing for a Divorce. Step 2 is "make an accounting of the family finances." We've discussed determining what you own. This step requires you to determine what you owe. You will need to make a determination of all of the debts of the marriage without respect to the name in which it was incurred.The Judgment of Divorce will need to address who is responsible for the debt whether it is in your name, your spouse's name, or joint names. I recommend that each of my clients obtain a copy of their credit report. This allows you to make sure that you know of all of the debt that is in your name. It is not unusual for a spouse to have incurred debt in the other spouse's name without their knowledge. If that has happened, you need to know it before the divorce is final, not after. There are many ways to obtain a copy of your credit report. You can request a free copy once per year at www.annualcreditreport.com. Once you see what all debt exists, obtain copies of the statements on these accounts to determine the balances. You may also need the statements if your spouse has made large or inappropriate purchases on the cards. If you cannot find credit card statements on each of the accounts, contact the credit card company directly and request they send them to you. You may want to check their websites as you might be able to make the request online. I normally want my clients to get a minimum of 12 months worth. Check with your lawyer to see what he recommends. Posted In Divorce Preparation
Comments / Questions (0) | Permalink 02 | 12 | 2007 Posted By Michael Sherman Step 2A - Determine what you ownWe are on Step 2 in our series regarding preparing for divorce. Step 2 involves making an accounting of the family finances. This includes determining what you own. For some, that may be easy. If you have a good handle on the family finances, then you are a step ahead. If not, then it is time to do your homework. Many of the assets of the marriage will be obvious - the home in which you reside, financial accounts, vehicles, recreational vehicles, etc. Others may not be so obvious - these include things like artwork, bearer bonds, a spouses deferred compensation, proceeds from a pending lawsuit, etc. Then there is the possibility that your spouse is hiding assets (this is more likely if they are the ones initiating the divorce or if divorce has been discussed previously). Review all possible assets. Attempt to gather documentation regardign each one including present value, where possible. Especially look for any recent appraisals of real estate. If your lawyer is charging you hourly, then any of this information that you are
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