Opinion
1296 CA 19–00634
03-13-2020
Anthony CARICATI, Plaintiff–Respondent, v. Patricia Mary CARICATI, Defendant–Appellant.
HEISMAN NUNES & HULL LLP, ROCHESTER (RONALD G. HULL OF COUNSEL), FOR DEFENDANT–APPELLANT. MAUREEN A. PINEAU, ROCHESTER, FOR PLAINTIFF–RESPONDENT.
HEISMAN NUNES & HULL LLP, ROCHESTER (RONALD G. HULL OF COUNSEL), FOR DEFENDANT–APPELLANT.
MAUREEN A. PINEAU, ROCHESTER, FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant wife appeals from an order determining, after a hearing, that a prenuptial agreement between defendant and plaintiff husband was valid and enforceable. Contrary to defendant's contention, Supreme Court did not err in determining that defendant failed to meet her burden of establishing that her signature on the document was a forgery. "An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" ( Domestic Relations Law § 236[B][3] ; see generally Matisoff v. Dobi, 90 N.Y.2d 127, 132, 659 N.Y.S.2d 209, 681 N.E.2d 376 [1997] ). "Under State law and general contract law, a forged signature renders a contract void ab initio ... Because there can be no meeting of the minds of the parties when a forgery has been perpetrated, no contract exist[s]" in that instance ( Orlosky v. Empire Sec. Sys., 230 A.D.2d 401, 403, 657 N.Y.S.2d 840 [3d Dept. 1997] ). Where, however, as here, "a document on its face is properly subscribed and bears the acknowledgment of a notary public, it give[s] rise to a presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary" ( Demblewski v. Demblewski, 267 A.D.2d 1058, 1058, 701 N.Y.S.2d 567 [4th Dept. 1999] [internal quotation marks omitted]; see Paciello v. Graffeo, 32 A.D.3d 461, 462, 819 N.Y.S.2d 480 [2d Dept. 2006], lv denied 8 N.Y.3d 802, 830 N.Y.S.2d 9, 862 N.E.2d 88 [2007] ). At the hearing, the notary public whose signature was on the document testified that defendant, whom she personally knew, asked her to notarize a document for her, and she did. Although defendant denied that and even claimed that she had not seen the prenuptial agreement until a few months before the hearing, the court credited the testimony of the notary public. The court's determination was supported by other evidence in the record, including the testimony of an attorney that he prepared a prenuptial agreement for plaintiff. We therefore conclude that defendant failed to meet her burden of showing that her signature on the document was a forgery (see Paciello, 32 A.D.3d at 462, 819 N.Y.S.2d 480 ; Demblewski, 267 A.D.2d at 1058, 701 N.Y.S.2d 567 ).
Defendant further contends that, even if her signature was deemed authentic, the prenuptial agreement is unenforceable because the maintenance provision is no longer fair and reasonable. "It is well settled that 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 N.Y.3d 573, 577, 872 N.Y.S.2d 426, 900 N.E.2d 977 [2008] ; see Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950 [2001] ). "[A] prenuptial agreement is accorded the same presumption of legality as any other contract ... 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" ( Trbovich v. Trbovich, 122 A.D.3d 1381, 1383, 997 N.Y.S.2d 855 [4th Dept. 2014] [internal quotation marks omitted]; see Taha v. Elzemity, 157 A.D.3d 744, 745, 68 N.Y.S.3d 493 [2d Dept. 2018], lv dismissed 33 N.Y.3d 1000, 101 N.Y.S.3d 730, 125 N.E.3d 146 [2019] ; Gottlieb v. Gottlieb, 138 A.D.3d 30, 36, 25 N.Y.S.3d 90 [1st Dept. 2016], lv dismissed 27 N.Y.3d 1125, 36 N.Y.S.3d 880, 57 N.E.3d 73 [2016] ). "An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" ( Taha, 157 A.D.3d at 745, 68 N.Y.S.3d 493 [internal quotation marks omitted]; see Ku v. Huey Min Lee, 151 A.D.3d 1040, 1041, 54 N.Y.S.3d 595 [2d Dept. 2017] ; Gottlieb, 138 A.D.3d at 47, 25 N.Y.S.3d 90 ). " ‘The burden of proof is on the party seeking to invalidate the agreement’ " ( Ku, 151 A.D.3d at 1041, 54 N.Y.S.3d 595 ; see Taha, 157 A.D.3d at 746, 68 N.Y.S.3d 493 ).
Domestic Relations Law § 236(B)(3)(3) provides that a prenuptial agreement may include a provision for the amount and duration of maintenance "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" (see Taha, 157 A.D.3d at 745–746, 68 N.Y.S.3d 493 ). We conclude that defendant's contention is not preserved for our review inasmuch as she did not raise the issue of the alleged unconscionability of the maintenance provision. In any event, defendant did not meet her burden of proof on the issue (see generally Ku, 151 A.D.3d at 1041, 54 N.Y.S.3d 595 ).
Defendant also contends that plaintiff breached the prenuptial agreement through his breach of fiduciary duty insofar as he allegedly manipulated the marital residence into his name alone, which would result in him receiving that property pursuant to the prenuptial agreement. That issue, however, was not before the court (see Colello v. Colello, 9 A.D.3d 855, 859, 780 N.Y.S.2d 450 [4th Dept. 2004] ).
Finally, defendant contends that the court abused its discretion in denying that part of a motion seeking attorneys' fees because she is the less monied spouse. We reject that contention. " ‘[A]n award of [counsel] ... fees pursuant to Domestic Relations Law § 237(a) will generally be warranted where there is a significant disparity in the financial circumstances of the parties’ " ( Wilson v. Wilson, 128 A.D.3d 1326, 1327, 7 N.Y.S.3d 751 [4th Dept. 2015] ). Nevertheless, " ‘[t]he decision to award ... attorney[s'] fees lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as [that of] the trial court[ ]’ " ( Haggerty v. Haggerty, 169 A.D.3d 1388, 1391, 92 N.Y.S.3d 773 [4th Dept. 2019], quoting O'Brien v. O'Brien, 66 N.Y.2d 576, 590, 498 N.Y.S.2d 743, 489 N.E.2d 712 [1985] ). " ‘[I]n exercising its discretionary power to award counsel ... fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions’ " ( Wilson, 128 A.D.3d at 1327, 7 N.Y.S.3d 751, quoting DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ; see § 237[a] ). We conclude that the court did not abuse its discretion in declining to award attorneys' fees to defendant, particularly considering the relative merit of the parties' positions, which favored plaintiff (see Dechow v. Dechow, 161 A.D.3d 1584, 1585–1586, 75 N.Y.S.3d 773 [4th Dept. 2018] ; Wilson, 128 A.D.3d at 1327, 7 N.Y.S.3d 751 ).