Opinion
No. CV–009965–13.
10-14-2014
Joseph Robert TORRES, Plaintiff(s) v. Debbie LOPEZ, Defendant(s).
Tilem & Associates, P.C., White Plains, Attorneys for Plaintiff. Law Offices of Robert Osuna, P.C., New York, Attorneys for Defendant.
Tilem & Associates, P.C., White Plains, Attorneys for Plaintiff.
Law Offices of Robert Osuna, P.C., New York, Attorneys for Defendant.
SCOTT FAIRGRIEVE, J.
Trial Decision
Issue
Plaintiff gifted a diamond ring to defendant on April 10, 2010. Was the ring given in contemplation of marriage, or was this ring given as a complete gift?
Plaintiff's Case
Plaintiff called the defendant as it's first witness.
Defendant testified that plaintiff and defendant met at a car dealership, where plaintiff worked as a manager, when she brought her car in for service. Plaintiff and defendant were friends for a long time and dated off and on. Eventually, they dated more seriously. Defendant became pregnant from her relationship with plaintiff. Their son, Nicholas Robert, was born on April 16, 2004.
In July of 2005, plaintiff and defendant moved in together. There were no marriage discussions.
In October of 2005, the parties moved into an apartment and split the expenses for about 2 years. Plaintiff lost his job but acquired employment on Long Island. They moved into defendant's mother's house for 1½ years.
In March of 2009, the parties moved to the Bronx and again split the cost. They lived in the Bronx apartment until plaintiff hit the defendant on October 9, 2011, in front of their son. Defendant testified that Plaintiff then fled the apartment so he would not be arrested.
Plaintiff did not return to the Bronx apartment after the October 9, 2011 incident. The relationship ended after the incident. Defendant moved out of the apartment in February of 2012.
In March of 2010, the parties went to the Manhattan Diamond District to look at diamond rings. Plaintiff wanted to buy defendant a ring for the reasons as follows:
Q.Okay. And what discussion, if any, did you have with Mr. Torres prior to going to the diamond district?
A.That he wanted to purchase a ring to establish, or basically say that, you know, he said I deserved the ring for being a good mother, a good wife, and he wanted to show, you know, his expression by purchasing this ring.
Defendant then put down $1,000 cash from her Chase account for just the diamond, which was never returned to her. The ring was subsequently purchased on April 10, 2010, when the diamond was mounted. Defendant testified that she paid $4,500 for the ring and that plaintiff paid the balance of $4,700.
The Purchase Invoice dated April 10, 2010, does not indicate that the diamond ring is for an engagement.
After purchasing the ring the parties walked to Rockefeller Center with their son. At Rockefeller Center, plaintiff gave the ring to their son who gave it to defendant. Defendant showed the ring to her parents. According to defendant, plaintiff never talked about marriage in 2010. Defendant wore the ring from time to time, and some people had asked if defendant and plaintiff were engaged. Defendant gave this answer:
Q.And did anyone ask you if that was an engagement ring?
A.A few people did.
Q.And what was your response?
A.I said, maybe. Don't know yet.
Q.And did anyone ask you if that was an engagement ring?
A.Some people did.
Q.And what was your response? And what was your response?
A.My response was maybe. I don't know. He gave me a ring, but I don't know if, you know, if it's an engagement ring, because like I said I was never asked to be married.
At some point, according to defendant, plaintiff went looking for wedding bands. Defendant asked plaintiff why he was looking at bands and provided the following testimony:
Q.And what did Mr. Torres say to you about purchasing a wedding band, if anything?
A.He just said he wanted to look at them. He didn't specifically tell me why. And I told him why. Why are you looking. You haven't asked me to marry you.
Defendant testified that they felt like they were engaged. However, plaintiff, a few weeks later, said he never wanted to get married again. The plaintiff had been married twice before.
The parties had a domestic partnership so plaintiff would be put on defendant's medical insurance. This was done about one to two years after they started living together and before defendant received the ring.
From about 2005 until the relationship ended, the parties referred to each other as their spouse.
The Testimony of Plaintiff
Plaintiff testified that he earned somewhere between $100,000 and $110,000 in the years 2005, 2007, 2010 and 2012.
Plaintiff and defendant cohabited from 2004 to 2012, when their relationship ended. He paid the rent and utilities and defendant paid the food and cable bills. Plaintiff made $50,000 more than defendant.
According to plaintiff, in April of 2010, he gave defendant the ring to become engaged. He took defendant to get the ring because he wanted to pick out the right ring. Plaintiff testified that the $1,000 which defendant put down came from the money he gave defendant each week. He gave $1,000 to defendant each week for savings to purchase a home. The $1,000 was deposited into defendant's account. Defendant put down the $1,000 on April 3, 2010, for the ring (not the diamond as testified by Defendant) without plaintiff being present. Plaintiff testified that he paid the balance of $9,200 from the cash he gave to defendant each week for savings. Defendant neither contributed for the purchase of the ring, nor said to plaintiff that the ring was a gift. Further, plaintiff testified that both parties spoke about getting engaged before the ring was given to defendant.
After purchasing the ring, plaintiff had possession of the ring. They walked to Rockefeller Center and plaintiff gave the ring to his son who gave it to defendant. At that time, according to plaintiff, he asked defendant to marry him and defendant said absolutely.
Defendant showed the ring to her parents and friends. Plaintiff testified that defendant's cousin said she would throw an engagement party and a date was set. The party was to be held at defendant's cousin's home in New Jersey. However, the date did not work because plaintiff had to work.
After April 10, 2010, plaintiff referred to defendant as his fiancee all the time. Defendant also referred to plaintiff as her fiancee.
Plaintiff claimed that the parties discussed a wedding. They tried on wedding bands in March of 2012 in the same exact store where the engagement ring was purchased to get matching rings for the wedding. They spoke about a destination wedding. Plaintiff and defendant looked at a wedding location in Throgs Neck. However, a wedding date was never set.
After the relationship ended, plaintiff made several demands for return of the engagement ring.
Cross Examination of Plaintiff
Plaintiff denied that he made demand for return of the ring after defendant filed for child support in Family Court.
Defendant was somewhat equivocal as to how much money he brought to purchase the ring:
Q.Yes, there was a time that she has $4,500 in cash, and you had the balance in cash. And you both went together, and took that cash, and paid the ring, right?
A.The $4,500 that she has was my money.
Q.Okay, that's your—that's what you're saying. I understand. But did there come a time—I'm just asking you, yes or not—that she got $4,500 and you had the balance, and you went together and paid it?
A.I do not recall.
Q.Okay. But you're sure that you didn't have all that money, right?
A.I don't recall whether I had $9,500, $8,500, $7,500. I don't recall the exact amount.
Q.Okay. You don't recall the exact amount that you brought to that day, right?
A.Well, I know I brought $9,500—$9,200 to pay the balance off.
Q.Okay. Did she bring—but you just testified that she had $4,500 from her account, right?
A.No, I didn't.
Plaintiff also testified that he and defendant had a history of exchanging gifts. Plaintiff gave defendant cars, jewelry and designer bags. Defendant gave plaintiff a watch and several pieces of jewelry.
Defendant had a separate account for the money which plaintiff gave her for savings. Defendant monitored the account but admits he didn't remember the $1,000 deposit taken from the account.
He stated that he proposed at Rockefeller Center which plaintiff accepted.
Plaintiff was married twice before proposing to the defendant.
Defendant's Case and Testimony
Defendant made $65,000 in 2009 and 2010 which was directly deposited into her Chase account. Defendant received a tax refund of $4,500 which was used to pay for the ring. The rest of the money came from plaintiff which he kept in his jacket as cash.
The $1,000 cash for the diamond deposit came from defendant's Chase account.
The ring was given to defendant for giving plaintiff a child and being a good mom.
Plaintiff asked the defendant to contribute for the gift because plaintiff owed a lot of money to the IRS.
Decision
Civil Rights Law Section 80–b allows recovery of a gift if the gift is made in contemplation of marriage:
Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof.
The dilemma for this court to decide is whether the diamond ring given to the defendant by plaintiff was in contemplation of marriage or not. This court must decide the case upon the credibility of the parties. No other witnesses were called. The only two documents introduced into evidence was the business card where the ring was purchased and the invoice for the purchase of the ring. No bank records or other financial records were put into evidence. There is no mention in the invoice that the ring was an engagement ring.
In Lipton v. Lipton, 134 Misc.2d 1076, 514 N.Y.S.2d 158 (Sup Ct, N.Y. Cty), the court stated that the intention of the parties whether an inter vivos gift is conditional or absolute is to be determined based from the express declaration of the parties or from the circumstances:
All the elements of an inter vivos gift were satisfied. (See In re Estate of Szabo, 10 N.Y.2d 94, 98 217 N.Y.S.2d 593, 176 N.E.2d 395 ). The ring was delivered and accepted. Whether in a given instance the gift is conditional or absolute is an ordinary question of intention to be determined by an express declaration in the making of the gift or from the circumstances. 38 C.J.S Gifts § 61.
In Glachman v. Perlen, 159 A.D.2d 553, 552 N.Y.S.2d 418 (2nd Dept 1990), the Second Department held issues of fact existed on whether the gifts were in contemplation of marriage:
Although the plaintiff may maintain a cause of action to recover gifts he gave to the defendant solely in contemplation of their marriage (see, Civil Rights Law § 80–b, see also, Gaden v. Gaden, 29 N.Y.2d 80, 323 N.Y.S.2d 955, 272 N.E.2d 471 ), the affidavits submitted by the parties regarding the circumstances under which the alleged gifts were given raise triable issues of fact precluding the awarding of summary judgment.
In DeFina v. Scott, 195 Misc.2d 75, 755 N.Y.S.2d 587 (Supt Ct, N.Y. Cty 2003), the court states the applicable law in New York concerning the recovery of a ring:
The court starts with application of the traditional principle of New York law holding that an engagement ring is the property of the male donor when an engagement is terminated (see, Gagliardo v. Clemente, 180 A.D.2d 551, 580 N.Y.S.2d 278 [1st Dept 1992] ; 11 N.Y. Prac New York Law of Domestic Relations § 4:4, Courtship: Engagement Rings [2002], “Even prior to the enactment of the anti-heart balm legislation,” cases held that “[t]he donee of the ring receives, at the time of the gift, only the right of possession. Firm ownership passes only upon the performance of the mar-riage”).
This rule applies only to a ring given as an engagement ring (id., “If there were reasons other than a contemplated marriage why the gift was given, such as part of a birthday or holiday celebration, the ring may not be subject to return. Where there is a genuine dispute as to the circumstances under which the ring was given, a trial is necessary to determine the facts”).
See also Poupis v. Brown, 90 AD3d 881, 935 N.Y.S.2d 127 (4th Dept 2009) holding issues of fact existed as to whether the ring and the transfer of the interest in the West Islip property were given solely in contemplation of marriage.
This court finds that while there is a very close issue of fact, the plaintiff failed to sustain his burden by preponderance of the evidence that the ring was solely given to defendant in contemplation of marriage.
Based upon a review of the trial transcript and evidence, this court holds that the ring was given as a gift and not in contemplation of marriage. The court credits the defendant's testimony that the ring was a gift for her giving the plaintiff a son and being a good mother. The invoice has no mention of the ring being an engagement ring. Plaintiff and defendant referred to each other as husband and wife prior to the ring being given as a gift. A domestic partnership already existed prior to the date the ring was given as a gift. The parties had a prior history of exchanging gifts with each other.
The court further credits defendant's testimony that she contributed $1,000 down for the diamond and gave $4,500 from her tax return.
The evidence further shows that no engagement announcement was sent out and no wedding venue had been booked.
Based upon the foregoing the plaintiff gave the ring to defendant as a gift and not in contemplation of marriage. Plaintiff is not entitled to recover a completed gift. Defendant is entitled to retain ownership of the ring.
So Ordered.