Opinion
05-20XXX8.
Decided June 2, 2006.
There are three motions before the Court. The wife moves for an order 1) enjoining the husband from interfering with her employment with and operation of the "X" Company; and 2) enjoining the parties and Chase Manhattan Bank from opening safe deposit box No. XXXX. The wife also moves for an order enjoining the husband and any person acting on his behalf from entering certain stores located in the XYZ Mall. The husband moves for an order pursuant to CPLR 3212 granting him summary judgment dismissing the complaint or in the alternative scheduling an immediate bifurcated trial on the issue of grounds.
The parties were married on September 21, 1987. The wife is 40 and the husband is 50 years old. The wife has an Associates degree in marketing. The husband is a CPA. There are two children of the marriage. In 1992, the parties purchased the marital residence for $360,000.00. They estimate the premises, encumbered by a mortgage of $340,000.00 and an equity loan of $200,000.00, is presently worth $1,000,000.00.
The parties and several other investors formed "The X Company, Ltd." (Hereafter X) for the purpose of operating an X store in the XYZ Mall. Initially, the parties owed 68.9%, two other investors owned 20% and a number of smaller investors owned 11% of the stock. On February 18, 2000, the licensor and X entered into an "Account Agreement" whereby the licensor licensed X to sell the licensor's merchandise. The licensing agreement provides that under certain terms and conditions, the licensor has the option to terminate the license. In particular, in the event, the wife (or any other shareholder of X who has been approved by the licensor) ceases exercising active control over day-to-day operations of the store, the licensor may exercise its termination option. The husband contends that he negotiated the deal with the landlord, the investors and the licensor; he arranged the financing; oversaw construction of the store; set up the corporate books and records; and ran the day to day fiscal operation of the store. The wife was employed in the store as principal buyer and sales person. The husband is also an 80% owner of another store in the XYZ Mall.
In November 2002, the parties began to participate in marriage counseling.
On December 11, 2002, the parties executed a "Stock Purchase Agreement" whereby the husband agreed to purchase the wife's interest in X for $200,000.00. The husband executed a promissory note obligating him to pay said sum as follows: interest only at 5% for the first five years and thereafter quarterly payments of interest and principal. The wife resigned as a director and executed and delivered an assignment of her shares to the husband. The husband states that the wife accepted "the first few" payments due under the agreement, but then stopped cashing the checks given to her. The husband discontinued making payments. The wife continued to work in the X store at a salary of $100,000.00 a year.
In April 2003, during a joint marriage counseling session, the wife told the husband that she was involved in an "on-going, long term sexual and emotional extramarital affair with one G.G." The husband states that thereafter he continued in his efforts to "keep the marriage going." On August 7, 2003, the parties retained Divorce Mediation Professionals to assist them in mediating a divorce settlement agreement. The wife states that at the last of three or four mediation sessions, on October 8, 2003, the parties decided to reconcile. On October 22, 2003, the parties booked a family cruise to St. Martin. The family went on the cruise between December 25, 2003 and January 2, 2004. According to the wife, on the return flight, the husband advised her he was involved in an extramarital relationship. The husband moved out of the marital residence in January 2004. He has resided in an apartment in Manhattan since that time. According to the husband, he did not commence "a social life of his own" until December 25, 2003.
The wife commenced the instant action for divorce on or about December 5, 2005 on the ground of abandonment. She filed the first order to show cause referred to above on December 14, 2005 and obtained an ex parte restraining order enjoining the husband from interfering with her employment at the X store and restraining a certain safe deposit box pending the determination of the application. A preliminary conference was conducted on January 9, 2006. The issue of grounds was not resolved at the preliminary conference. On March 13, 2006, the wife filed a second order to show cause seeking an order enjoining the husband and any person acting on his behalf from entering the stores in issue located in the XYZ Mall. Her application for an ex parte temporary restraining order for such relief was denied. In support of her application, the wife alleged that on February 18, 2006, the husband took $7000.00 in cash belonging to the store from a bank deposit envelope in a safe; and that on February 23, 2006, he called her a "f____king bitch" in front of staff. She stated that the husband can track the business financial transactions online and does not need access to the store.
On March 16, 2006, the husband moved for summary judgment dismissing the complaint. On or about March 30, 2006, the wife served an amended verified complaint seeking a divorce on the grounds of abandonment and cruel and inhuman treatment. On March 30, 2006, the Court adjourned the husband's motion to dismiss the complaint to April 20, 2006 and deemed same a motion to dismiss the amended complaint.
The husband contends that the wife lacks grounds for divorce and that absent the termination of the marriage, the Court has no authority to equitably distribute his shares of X. He points out that in seeking interim restraining orders relating to the X store, the wife failed to disclose to the Court that she had assigned all her shares in X to the husband and she no longer had a propriety interest in said corporation. In support of his application for an order dismissing the complaint, or in the alternative, granting him a bifurcated trial on grounds, the husband states the following: that prior to the commencement of the instant action, he commenced negotiations with the licensor and the landlord of the XYZ Mall to build an expanded X store; that the construction project will cost $3,500,000.00; that he signed a lease with the landlord to pay rent for the new store of $30,412.00 a month; that construction is due to commence January 1, 2007; that while the divorce action is pending he is barred from using jointly owned assets for collateral and will not qualify for a SBA loan or a traditional loan; that another licensor has offered to enter a joint venture to build a boutique in the location that presently houses the X store; that said venture is also jeopardized by the pending divorce action; that he is presently negotiating with the landlord to open a third store, and said enterprise is also at risk. The husband contends that the wife's causes of action for divorce are devoid of merit, and that she has interposed same specifically to use the pendency of the action as "leverage" to force him to make her a partner in his business enterprises.
The wife responds that although the "Stock Purchase Agreement" recites that each party was represented by independent counsel, she was not represented. She further states that the consideration for her shares was never paid. According to the wife, she believed the agreement was a nullity. She points out that subsequent licensing agreements continue to identify her as a shareholder. She further states that she relied upon the husband's post agreement representations that she was a 17% shareholder. She explains that for all the above reasons, she did not disclose the existence of the aforesaid "Stock Purchase Agreement" when she moved for preliminary injunctive relief relating to the X store. She contends that the husband is contesting grounds solely to avoid disclosure that will demonstrate that he has taken hundreds of thousands of dollars of cash out of the business.
In moving to dismiss the original complaint, the husband stated that he moved out of the marital residence at the wife's request; that she has continued her relationship with G.G;. and had recently purchased a residence with her paramour. The husband advised the Court that he did not believe the wife would deny asking him to move out of the marital residence or deny having a long term affair with G.G.
In her affidavit, sworn to on March 30, 2006, the wife did, in fact, deny asking the husband to move out of the marital residence or consenting to same. She states that she believed the parties were attempting to reconcile between October 2, 2003 and January 3, 2004, and she was surprised by both the husband's January 4, 2004 revelation that he was in love with another woman, and his departure from the marital residence. The wife did not, however, deny that she has continued her relationship with G.G. to date. Further, she did not state that during the period of the purported attempted reconciliation, or at any time subsequent to her revelation about her affair, that she terminated her relationship with her paramour.
The husband replies that even if there is an issue of fact with regard to consent, his departure from the marital residence was justified, as a matter of law, by the wife's admitted adultery and that her cause of action for divorce on the ground on abandonment must be dismissed.
The husband contends that the wife's cause of action for divorce on the ground of cruel and inhuman treatment set forth in her amended complaint must also be dismissed as a matter of law. He points out that the only cruelty set forth in the complaint relates to allegedly adulterous acts he committed after December 25, 2003, and he asserts that his commission of the alleged adulterous acts could not, under any circumstances, constitute cruel and inhuman treatment rendering it unsafe or improper for the parties to cohabit, as the wife had revealed to him that she was engaged in prior on-going adulterous conduct herself.
Pursuant to DRL 170(2), an action for divorce may be maintained by a husband or wife on the ground of the abandonment of the plaintiff by the defendant for a period of one or more years. The law is well settled that to constitute an abandonment, a defendant's departure from the marital residence must be unjustified and without plaintiff's consent ( see, Schine v. Schine, 31 NY2d 113; Johnson v. Johnson, 167 AD2d 954; Del Gado v. Del Gado, 51 AD2d 741). Generally, the issue of whether a defendant spouse abandoned a plaintiff spouse is a question of fact not amenable to summary resolution ( see, Silbert v. Silbert, 22 AD2d 893). The law is well settled, however, that a defendant who has grounds to divorce a plaintiff, is justified in departing the marital home ( see, Johnson v. Johnson, supra). In the case at bar, if the husband can demonstrate, as a matter of law, that he had grounds to divorce the plaintiff as of the date he moved out of the marital residence, his departure would be justified, as a matter of law, and the plaintiff's cause of action for divorce on the ground of abandonment would not be viable.
There is a plethora of cases holding that a defendant spouse who dates, professes romantic affection for a person other than a spouse, and or reveals that he or she is involved in intimate relations with someone other than his or her spouse, engages in a course of conduct rendering it unsafe or improper for the parties to continue to cohabit, entitling a plaintiff spouse to a divorce on the ground of cruel and inhuman treatment ( see, Rauchway v. Kotyuk, 255 AD2d 885; Haydock v. Haydock, 222 AD2d 554; Guneratne v. Guneratne, 214 AD2d 871; Clarkson v. Clarkson, 103 AD2d 964; Hendery v. Hendery, 101 AD2d 624; Fritz v. Fritz, 88 AD2d 778).
Here, the wife's admitted revelation to the husband in April 2003, that she was involved in an on-going long term sexual and emotional extramarital relationship, as a matter of law, constituted cruel and inhuman treatment of the husband by the wife and justified the husband's departure from the marital residence in January 2004. The wife's allegation that the husband forgave her infidelity and the parties attempted to reconcile between October 2003 and December 25, 2003, even if true, would be insufficient to defeat a cause of action for divorce on the ground of cruel and inhuman treatment, as the defense of condonation or forgiveness is applicable only to a cause of action for adultery (DRL 171) and requires proof of a resumption of marital relations. Condonation is not a defense to a cause of action for divorce on the ground of cruel and inhuman treatment ( see, Fritz v. Fritz, supra; but see, Sim v. Sim, 241 AD2d 660 ).
Further, despite her burden to lay bare her proof in defense of the husband's motion for summary judgment, the wife has not asserted that the parties engaged in marital relations during the period of the alleged attempted reconciliation ( see, Zuckerman v. City of New York, 49 NY2d 557).
As the husband has demonstrated, as a matter of law, that he had grounds to divorce the wife as of January 2004, he has established that his departure from the marital residence was justified. Accordingly, his motion for an order pursuant to CPLR 3212 granting him summary judgment dismissing the wife's cause of action for divorce on the ground of abandonment is granted.
In the case of Lipset v. Lipset, 150 AD2d 648, the Appellate Division Second Department granted summary judgment dismissing a cause of action for divorce on the ground of cruel and inhuman treatment where the cruelty alleged was that the defendant had engaged in an extramarital affair after the plaintiff had abandoned the defendant and the plaintiff had alleged only that the defendant's conduct had caused him humiliation and embarrassment. Here, it is undisputed that the husband's relationship with another woman (the cruel and inhuman treatment alleged by the wife) commenced after the wife's revelations of her own adultery. Further, despite her burden to lay bare her proof in defense of the husband's summary judgment motion, the wife's opposition papers make no reference to any physical or mental harm she allegedly sustained by virtue of the husband's acts. Accordingly, the wife's cause of action for divorce on the ground of cruel and inhuman treatment is also dismissed.
As both of the wife's causes of action for divorce have been dismissed, the Court lacks jurisdiction to equitably distribute marital assets. It does, however, retain authority to determine title to and possession of property pursuant to DRL 234. As the wife assigned her shares in X to the husband, her motions for orders enjoining him from entering the stores in issue, enjoining him from interfering with her operation of the business and enjoining access to a safe deposit box maintained by X are denied. However, the ex parte restraints, enjoining the husband from excluding the wife from the business and restraining access to the safe deposit box are continued and shall remain in full force and effect through June 15, 2006 in order to afford the wife the opportunity to seek preliminary injunctive relief pursuant to CPLR Article 63 and DRL 234.
This constitutes the decision and order of the Court. The parties and counsel shall appear for a conference on June 8, 2006 at 9:30 a.m.