Opinion
No. 43A2008.
2010-03-18
In the Matter of the Proceeding by Eugene K. BARABASH & Kim Barabash, as Co–Administrators of the Estate of Eugene J. Barabash, Deceased, to discover property withheld.
Donlon & Harold, P.C., By Patricia Harold, Esq., Garden City, for Petitioners. Kevin J. Fitzgerald, Esq., Smithtown, for Respondent.
Donlon & Harold, P.C., By Patricia Harold, Esq., Garden City, for Petitioners. Kevin J. Fitzgerald, Esq., Smithtown, for Respondent.
JOHN M. CZYGIER, J.
The captioned proceeding was commenced by order to show cause directing respondent to attend and be examined. Upon the filing of a responsive pleading, petitioners converted their pleading to request the turnover of certain real property at 275 Cambon Avenue, St. James, New York 11780. The court having denied the parties' dispositive motions by decision dated July 21, 2009, a hearing was conducted in December, 2009. The court having heard testimony, received certain documents into evidence, and reviewed post-trial memoranda, it is now ready to render a determination on the outstanding evidentiary issues and on the ultimate substantive allegations.
Background
As noted in the court's July, 2009 decision/order, subject decedent died intestate on September 5, 2007. His two surviving children, petitioners herein, received letters of administration, which issued on April 29, 2008. The underlying discovery proceeding was filed shortly thereafter. Petitioners referred the court to a copy of an antenuptial agreement allegedly entered into by decedent and respondent on July 20, 1983, wherein it is alleged the parties agreed that, inter alia, in the event they purchased a residence during the marriage, said residence would become part of subject decedent's estate upon his death, subject to, in essence, respondent's elective share, although not referred to as such in the agreement. Decedent and respondent married on July 23, 1983; the premises at issue was purchased on December 20, 1983 with title being taken as tenants by the entirety. Respondent transferred the deed into her name alone upon decedent's death. In response to the petition, the answer filed by respondent asserts that the antenuptial agreement is invalid and that she is the rightful owner of the subject premises, which she and decedent held as tenants by the entirety. It is respondent's contention that the agreement presented to the court is a “... fraudulent document (which) has been materially altered.”
Statement of Issues
The following statement of issues was entered into, pursuant to Uniform Rule 207.30, and consented to by the parties:
ISSUE # 1
Was an Antenuptial Agreement executed by Eugene J. Barabash (decedent) and Linda Barabash (respondent) on July 20, 1983?
Burden of Proof: Petitioners
ISSUE # 2
Was the subject Antenuptial Agreement executed on July 20, 1983 fraudulently procured or materially altered?
Burden of Proof: Respondent
ISSUE # 3
In the absence of proof that the subject Antenuptial Agreement executed on July 20, 1983 was fraudulently procured or materially altered does the execution of the deed transferring the property at 275 Cambon Avenue, St. James, New York 11780 to “EUGENE J. BARABASH AND LINDA D. BARABASH, his wife” on December 20, 1983 supersede the Agreement executed on July 20, 1983, which states in ¶ 5 thereof “... In order to effectuate this, Linda agrees that for estate purposes, property acquired during the marriage shall be in Eugene's name or be considered as being ( sic ) Eugene's name alone”?
Burden of Proof: Respondent
Trial Testimony
Petitioner Kim Barabash testified that she recognized her father's signature on the alleged antenuptial agreement over respondent's objection. She was also asked to identify respondent's signature, which she did based upon her familiarity with it, having had an opportunity to see such signature over the years. She indicated that her father gave her the original agreement shortly before he died, and that it remained in her possession until she gave it to her attorney. She indicated that her father also told her that a certain Vanguard Account would be split among decedent's spouse and two children in one-third shares. Respondent objected to the authentication of the document, which the court overruled; and then objected on CPLR 4519 grounds. The court admitted the document into evidence (Exhibit # 1) subject to allowing counsel to brief their respective positions on the issue subsequent to the hearing.
Both petitioner Kim Barabash and respondent testified about an e-mail allegedly sent by the decedent to his ex-wife in June, 2007, which refers to a prenuptial agreement “... where the kids are left of the house each....” A copy of the e-mail is also contained in petitioner's Exhibit # 4 (for identification), which was respondent's response to demand for discovery and inspection. Respondent objected to the introduction of the e-mail into evidence (Exhibit # 2) as improperly authenticated and the court admitted it into evidence over respondent's objection, subject to arguments to be made in post-hearing memoranda. Exhibit # 3 in evidence is petitioner's Notice for Discovery and Inspection.
When questioned about the prenuptial agreement itself, respondent noted that her initials were not on the document, that she did not observe anyone else placing their initials on the document, that she does not remember seeing the first two pages of the instrument, (which bore the caption RIDER TO AGREEMENT BETWEEN EUGENE J. BARABASH & LINDA D. JOHNSON dated July 20, 1983” hereinafter “the rider”) that the signature on page 3 of the document (“Linda D. Johnson”) was hers, that she understood the document to refer to the real estate decedent brought to the marriage (property in Massapequa, New York and in Florida), and that she believed the house in St. James (the property purchased in December, 1983) belonged to her upon her husband's death. She also indicated that she did not have the opportunity to thoroughly review the document or to consult independent counsel, and that her highest level of education was high school.
Arguments and Evidentiary Issues
Petitioners maintain that the agreement was properly admitted into evidence, as materially relevant to the facts at issue between the parties. They also argue that it must be presumed valid until it is successfully set aside. Further, they point to respondent's testimony, identifying her signature at the end of the document, and to petitioner Kim Barabash's testimony identifying her father's signature, as well as respondent's, as sufficient for the purpose of authenticating the document.
Petitioners also argue that, mindful of the strictures of CPLR 4519, Kim Barabash was competent to testify with respect to conversations with her father; since, as a fiduciary, she was able to testify on behalf of the estate's interest, even though she is also an interested party.
With respect to the e-mail purportedly sent from decedent to his ex-wife, petitioners argue that its admission into evidence is proper. They contend that, not only was it provided them by the recipient of the e-mail (decedent's ex-wife Dolores Barabash), but it was also produced by respondent in response to a discovery demand. Respondent argues that electronic evidence should be authenticated by testimony from a witness with first-hand knowledge of the exchange, and that is missing in this case.
As it was on the motion for summary judgment, respondent's position on the merits is that the “rider” to the alleged agreement was added to the agreement after the fact, and that she did not even see it until after her husband's death. She points to the fact that her initials do not appear on the agreement, that the document as a whole appears to have been taken apart and stapled together again, and that the “rider” is attached to the front instead of the back of the agreement in chief. In addition to claiming that the agreement was materially altered, respondent's counsel asserts that the agreement demonstrates overreaching and duress by decedent and his attorney at the time, and that the deed titling the property in the names of decedent and respondent as tenants by the entirety should be dispositive of the issues before the court.
Preliminary Evidentiary Rulings
The matter being heard by the court without a jury, certain evidentiary rulings admitting documents into evidence were made by the court with the reservation that the parties could reargue their admissibility in their post-trial memoranda. The court, having reviewed the arguments of the parties, will address those issues. –Authentication of the Antenuptial Agreement dated July 20, 1983
Petitioners offered as Exhibit # 1 a six page typed document purporting to be the antenuptial agreement giving rise to the dispute between the parties. As suggested above, the document itself warrants some discussion.
The first two pages of the document are not numbered, nor are they signed by the decedent or the respondent; however, the decedent's initials appear in the margin of these first two pages. The first page bears the caption “RIDER TO AGREEMENT BETWEEN EUGENE J. BARABASH & LINDA D. JOHNSON dated July 20, 1983.” It is stapled to the front of the document, i.e., prior to the remaining four pages of the document. Those four pages are numbered at the bottom, and are initialed by decedent. Both decedent's and respondent's signatures appear at the end, and are acknowledged by different notaries for each signer. The first page of the agreement in chief (in actuality the third page of the six page document) bears the caption “ANTE NUPTUAL ( sic ) AGREEMENT.” The terms of the first two pages (the rider) contain language wherein, generally, each party waives their rights to share in the other's estates. The last four pages, the terms of which will be focused on infra, contain specific provisions with regard to property to be acquired in the course of the marriage.
Respondent objected to the document on the ground that the document was not properly authenticated in that the petitioner, as a lay witness, was not qualified to identify the decedent's signature on the document. As to authentication, a lay person may identify the signature of someone whose signature she is familiar with (see Acevedo v. Audubon Mgmt., Inc., 280 A.D.2d 91, 95, citing Richardson, Evidence, §§ 9–103[d], 7–318[a] [Prince., 11th ed.] ).
Respondent also made certain objections predicated upon CPLR 4519 with respect to the admissibility of the document.
The Dead Man's Statute “precludes a party or person interested in the underlying event from offering testimony concerning a personal transaction or communication with the decedent.” The rule is “grounded ... on the concept that where death has sealed the lips of one of the parties to a personal transaction, the law, for the protection of his [or her] estate and ... survivors, should and ought to seal the lips of anyone else making a claim against the estate.” The statute does not bar “the introduction of documentary evidence against a deceased's estate (Miller v. Lu–Whitney, 61 AD3d 1043, 1044–1045; citations omitted; see also Acevedo v. Audubon Management, Inc., 280 A.D.2d 91). Thus, a party may introduce a document authored by the decedent, as long as the document is authenticated by a source other than an interested witness's testimony without violating the Dead Man's Statute. In addition, respondent herein identified her signature, as well as that of her deceased husband.
Even in the absence of testimony from petitioner, the respondent's testimony was sufficient to authenticate the document, however, not the entire document. The respondent testified that although she signed the document on July 20, 1983 when her husband did, the document she signed consisted of only the four numbered pages of the document; she claims she never saw the first two (unnumbered) pages of the document until after her husband's death. The court finds the testimony of the respondent to be credible in that at the time the document was signed, it only consisted of the last four pages. The court reaches this conclusion after considering the physical attributes of the six page document which, as a whole, leads the court to believe that, to say that the rider's provenance is suspect would be an understatement. Therefore, the court will modify its previous ruling which allowed the entire six page document into evidence, and allow only the four page “antenuptual ( sic ) agreement” into evidence as the prenuptial agreement entered into by the parties. Therefore, said four page document has been properly authenticated and is material and relevant to the issues before the court. It is, thus, properly in evidence. –CPLR 4519 and petitioner's conversations with her father regarding the document
Respondent objected to the petitioner Kim Barabash's testimony concerning a conversation she had with her father, the decedent, when he delivered the document to her for safekeeping, arguing that petitioner, as an interested party was not competent to testify as to her discussions with the decedent concerning the document since the conversation constituted a transaction with the decedent and was therefore barred by CPLR 4519. Petitioner Kim Barabash argued that, as the fiduciary of the estate, she was competent to offer such testimony since it was being given on behalf of the estate's interest, even though she is also an interested party.
As to the 4519 objection to the conversation referenced herein, the objection is sustained. Even though petitioner Kim Barabash is a fiduciary of the estate, as a party interested in the event, she is incompetent to testify with respect to conversations with the decedent (see In re Christie's Estate, 167 Misc. 484). Therefore, any testimony concerning same is stricken.
–E–mail dated June 6, 2007–
With respect to the e-mail proffered by petitioner as Exhibit # 2 and part of Exhibit # 4, although provided by respondent in response to a discovery demand, it has not been properly authenticated as being sent from decedent to his ex-wife. Further, what decedent may have thought or intended or told his family members prior to his death is irrelevant and immaterial to the determination of whether the parties entered into a valid antenuptial agreement in 1983 that can be enforced after the decedent's death against his surviving spouse. Thus, the e-mail proffered at trial is not in evidence. No other documents were offered by either party.
To summarize the court's rulings, the documentary evidence before the court to be considered in rendering a decision consists solely of the four page agreement; the contents of the e-mail dated June 6, 2007 will not be considered; the testimony of the petitioner concerning a conversation she had with her father regarding the prenuptial agreement is stricken from the record.
Findings
Based upon the sworn credible testimony adduced at trial, the demeanor of the witnesses, and the exhibits received in evidence, the court makes the following findings of fact. The court finds that the rider was not part of the agreement executed by the parties on July 20, 1983. This finding is based upon both the physical appearance of the rider and the testimony of respondent, which the court found to be credible.
Petitioners have failed to prove that the agreement presented to the court was executed as a whole in the manner alleged.
It was sufficiently established that respondent signed the agreement, consisting of the four enumerated pages referenced herein. No other witnesses (such as the drafting attorney or the other notary) were produced who could have established that the rider was part of the agreement executed by the parties on the date in question, or that any transactions subsequent to its execution created a departure from the intention of the parties evidenced by the agreement executed. The court then must consider whether the agreement, without a valid waiver, is enforceable as a contract between the parties.
Applicable Law
Having found that the petitioners have failed to prove that the rider was part of the agreement entered into by the decedent and respondent, the court is left with a four page agreement, that has been shown to have been executed by both decedent and respondent on the date in question. It seems, however, that said agreement, absent the first two pages, lacks an explicit waiver of the parties' statutory rights in each other's estate and any financial disclosure.
Duly executed prenuptial agreements are generally valid and enforceable given the “strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements” (Van Kipnis v. Van Kipnis, 11 NY3d 573, 577; citing Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193). As with all contracts, prenuptial agreements are construed in accord with the parties' intent, which is generally gleaned from what is expressed in their writing. Consequently, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” ( Van Kipnis, supra; citing Greenfield v. Phillies Records, 98 N.Y.2d 562, 569). Extrinsic evidence of the parties' intent may not be considered unless a court first finds that the agreement is ambiguous.
Waivers of statutory rights in a spouse's estate are strictly and narrowly construed, and the surviving spouse will not be deemed to have waived such rights unless she has done so in the most unambiguous and unquestionable language ( Application of Roy, 116 Misc.2d 382, 389; In re Hua Wang, 20 Misc.3d 691, 697). Waivers of interest in a spouse's estate, as they are to be strictly construed, require explicit renunciation of an interest in particular properties ( Estate of Bono, 2/13/98 NYLJ 34 (col.5) citing Matter of Winkler v. Bauman, 89 A.D.2d 529, citing Matter of Marrucia's Estate, 54 N.Y.2d 196). The only unambiguous language waiving respondent's rights in decedent's estate appears in the “rider” at issue, which is not in evidence. In short, the agreement, although binding on the parties in certain respects as discussed infra, fails as a valid prenuptial agreement.
Analysis
As noted by this court in the decision rendered after motions for summary judgment were made, a portion of the pertinent language in the agreement at issue is contained in ¶ 3 of the agreement in chief executed on July 20, 1983. It states, in part, as follows:
All property owned by either of the parties at the time of their marriage ... shall be the separate estate of the respective parties now owning such property and clear of any right, interest, claims or demands of the other, and the other hereby covenants and agrees to make no claim or demand on the separate property of the other, or on the heirs, executors, or administrators of the other in the event of his or her death, with respect to such separate property of the other, except as otherwise expressly provided herein....
Another portion of pertinent language in said agreement is contained in ¶ 5 of the agreement in chief. It states as follows:
Eugene specifically waives the right to deny Linda all interests that Linda may have in his estate as a surviving spouse. In lieu thereof, he specifically agrees to grant Linda one third ( ) of his estate at the time of his demise, which shall remain in force and effect as long as Eugene and Linda are married and living together as man and wife. In consideration of same, Linda agrees that Eugene's children shall receive two thirds ( ) of Eugene's estate upon his demise. In order to effectuate this, Linda agrees that for estate purposes, property acquired during the marriage shall be in Eugene's name or be considered as being ( sic ) Eugene's name alone. However, for equitable distribution purposes, any financial contributions made by Linda during the marriage shall be considered. (Emphasis added)
Thus, by its terms, although the parties appeared to intend that any property acquired during the marriage would be included in decedent's estate, however it was titled, the language upon which the division of property is premised is ineffective for the purpose of waiving respondent's rights in decedent's estate. The waiver contained in the rider is not being considered as part of the agreement in question, and the attempted agreement to divide the assets in thirds is ineffective for the purpose intended, to wit, to limit respondent's share to one-third of the decedent's estate in consideration of decedent's waiving his purported right to deny respondent all interest that respondent may have as surviving spouse. In the absence of a valid waiver by respondent, decedent could not deny respondent her statutory rights as surviving spouse, pursuant to the laws of intestacy.
That being said, a clear reading of the agreement indicates that although it may fail as a valid waiver of statutory rights, the parties intended that whatever property was purchased subsequent thereto would, no matter how titled, be included in decedent's estate. There was no proof, parol or documentary, as to any course of conduct by either spouse to indicate how the agreement may have been modified or superseded subsequent to its execution. In short, there being no proof on this issue, the court will not speculate as to any transactions that might appear to be contradictory to the agreement in evidence.
Conclusion
Thus, the court decides the issues presented for trial, as follows:
With respect to Issue # 1, petitioners did not establish that a valid prenuptial agreement was executed by Eugene J. Barabash (decedent) and Linda Barabash (respondent) on July 20, 1983. However, the proof supports an agreement to include all property acquired during the marriage in decedent's estate. Respondent failed to carry her burden of proof with respect to Issues # 2 and # 3.
Thus, the proof adduced at trial establishes that the St. James property should be included in the decedent's estate.
The relief requested by petitioners for the turnover of the property in St. James, New York held by respondent is granted, only to the extent outlined herein, that said property is deemed an asset of decedent's estate. Respondent is entitled to the interest allotted her as decedent's surviving spouse, pursuant to EPTL 4–1.1, et seq.
Proceed accordingly.