Opinion
No. 55167/2021
07-19-2022
E.K., Plaintiff, v. C.K., Defendant.
Counsel for the Plaintiff, E.K., Robert Bondar, Esq. Counsel for Defendant, C.K., Robert Allen Ugelow, Esq., ROBERT A. UGELOW, P.C.
Unpublished Opinion
Counsel for the Plaintiff, E.K., Robert Bondar, Esq.
Counsel for Defendant, C.K., Robert Allen Ugelow, Esq., ROBERT A. UGELOW, P.C.
Ronald Castorina, Jr., J.
The following e-filed documents listed on NYSCEF (Motion #001) numbered 26-33, 45-57, and (Cross Motion #002) numbered 34-44, 58 were read on these motions.
Upon the foregoing documents, and on consideration of testimony provided at a hearing conducted on June 7, 2022, and June 8, 2022, Motions Sequences #001 and #002 are resolved and therefore, it is hereby, ORDERED, that Plaintiff's request to invalidate the prenuptial agreement between the parties is DENIED.
ORDERED, that Defendant's request to enforce the terms of the prenuptial agreement between the parties is GRANTED.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
Statement of Facts
On or about August 4, 2016, Defendant, C.K., sought counsel for the purpose of drafting the prenuptial agreement and provided at least one copy of the prenuptial agreement to the Plaintiff, E.K. nee XXXX. Plaintiff did not seek the advice of counsel and on August 4, 2016, Plaintiff appeared before a notary public and executed the agreement. On August 8, 2016, the Defendant appeared before a notary public and executed the agreement.
The agreement provided, inter alia, that, in the event of a divorce or the death of either party, each party waived the right to the other's separate property, including property acquired from the proceeds of separate property acquired during the marriage. Under the Section 11, entitled "Full Disclosure", which provides for annual and net incomes of the parties, no financial information has been provided for the Plaintiff and only an annual income is provided for the Defendant.
Under Section 12, entitled "Legal Representation", the name B.K.P. has been written in as counsel for the Plaintiff, but both parties acknowledge Plaintiff was not represented by this attorney.
The document was provided to the Plaintiff in English.
The parties were married shortly thereafter on August 15, 2016. There are no children born of this marriage. Plaintiff commenced this action for divorce on or about March 22, 2022.
On August 30, 2021, Plaintiff filed Motion Sequence #001 by Notice of Motion. The Plaintiff seeks a determination invalidating and setting aside the prenuptial agreement between the parties.
Defendant filed opposition to Motion Sequence #001 and Cross Motion Sequence #002 on October 3, 2021, seeking a determination of validity of the prenuptial agreement and enforcement of the agreement. In addition, Defendant further seeks to vacate and strike all affirmative defenses set forth in the Plaintiff's reply to Counterclaims relating to the prenuptial agreement.
On October 14, 2021, Plaintiff filed reply to Motion Sequence #001 and opposition to Cross Motion Sequence #002. Defendant filed reply to Cross Motion Sequence #002 on October 18, 2021.
A hearing was held on Motion Sequence #001 and Cross Motion Sequence #002 on June 7, 2022 and June 8, 2022. Plaintiff testified on her own behalf through an official Russian interpreter provided by the court and called B.K.P. as witness. Plaintiff introduced two documents into evidence (Plaintiff's Exhibit #1). Defendant testified on his own behalf and called his niece, A.T., and daughter V.K. as witnesses. Defendant did not introduce any documents into evidence.
This is a Decision and Order on Motion Sequence #001 and Cross Motion Sequence #002.
Discussion
Prenuptial Agreement
In Motion Sequence #001, the Plaintiff seeks a determination by this court setting aside and invalidating the prenuptial agreement between the parties. Plaintiff argues the agreement should be set aside because: (a) Plaintiff was not represented by an attorney, despite alleged fraudulent representation in the agreement that she had legal representation, (b) the agreement was signed under duress, (c) the terms of the agreement are unconscionable and overreaching, and (d) the Defendant allegedly failed to truthfully disclose his financial circumstances to the Plaintiff prior to the agreement's execution.
In Cross Motion Sequence #002, Defendant seeks (1) to enforce the terms of the prenuptial agreement, and (2) vacate and strike all the affirmative defenses set forth in Plaintiff's reply to counterclaims relating to the prenuptial agreement.
"In general, New York has a 'strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements.'" (see Cioffi-Petrakis v Petrakis, 103 A.D.3d 766 [2d Dept 2013], quoting In re Estate of Greiff, 92 N.Y.2d 341 [1998]). There is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties." (see id, quoting Brassey v Brassey, 154 A.D.2d 293 [1st Dept 1989]).
"[A]n agreement between spouses or prospective spouses may be invalidated if the party challenging the agreement demonstrates that it was the product of fraud, duress, or other inequitable conduct." (see Cioffi-Petrakis v Petrakis, 103 A.D.3d 766 [2d Dept 2013], citing Christian v Christian, 42 N.Y.2d 63 [1977]). Such an agreement should also "be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse." (see Lombardi v Lombardi, 127 A.D.3d 1038 [2d Dept 2015], quoting Bibeau v Sudick, 122 A.D.3d 652 [2d Dept 2014]). "The burden of proof is on the party seeking to invalidate the agreement." (see Weinstein v. Weinstein, 36 A.D.3d 797 [2d Dept 2007]).
Domestic Relations Law § 236 (B) (3) provides that "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 a manner required to entitle a deed to be recorded." (see Rio v Rio, 110 A.D.3d 1051 [2d Dept 2013]). There is a presumption that a prenuptial agreement is valid and enforceable if it has met these requirements.
Plaintiff Exhibit #1 is a written document titled "Prenuptial Agreement". The document has been signed by the Plaintiff and the Defendant and the signatures have been properly notarized. Plaintiff acknowledges that she "signed it [prenuptial agreement] and notarized it in Citibank on Staten Island." (tr at 27, lines 17-18).
Plaintiff testified that the Defendant explained to her that "from the moment we signed that agreement, whatever he owned would stay his, it would never be mine, it would never be split between the two of us up to that point." (tr at 26, lines 18-20). Plaintiff admits that Defendant did explain to her the sum and substance of the prenuptial agreement.
While Plaintiff contends that she did not understand enough English read Plaintiff's Exhibit #1, she was provided with the document approximately two weeks before the marriage license would expire. (tr at 29, line 16). Plaintiff has not alleged any additional time restraints. In fact, the two-week time restraint is a loose one at best in that the parties could have obtained a new marriage license if necessary.
When the parties met, Plaintiff was already a highly educated person, who graduated college with an engineering degree and received an additional qualification in a non-diploma program. (tr at 36, line 13 and 22-23). Plaintiff, who's primary language was Russian, was in a relationship with Defendant who did not speak any Russian. Plaintiff spoke "very primitive English." (tr at 12, line 18) and was able to understand "[a]bout 70 percent" of conversations with Defendant. (tr at 12, line 24). Plaintiff was also aware of and used "Google Translate" (tr at 13, line 13) to facilitate communication with the Defendant. Plaintiff further maintained communication with Defendant via phone and different messenger services during the time she was in Russia and Defendant in the United States. (tr at 15, lines 7-8).
Plaintiff had possession of the prenuptial agreement when she was provided with the document to for signature and notarization. She had a window of at least two weeks in which she could have had the document fully translated by a third party or used an application like those used for translation of her communications with the Defendant. Plaintiff alleges that she chose not to do that and instead rely solely on the representations made by the Defendant. Plaintiff testified, "[w]e never talked about having it [prenuptial agreement] translated or-we never discussed translating it enough for me to understand or explain it to me. And at that point, I trusted him completely, and it never occurred to me to-I never saw the need for somebody to translate it to me directly." (tr at 27, lines 9-14).
Plaintiff seeks to have the prenuptial agreement set aside on the ground that she did not have legal representation. There is no requirement in DRL § 236 (B) (3) that requires both parties to obtain legal counsel prior to executing a prenuptial agreement. The "absence of legal representation, without more, does not establish overreaching or require an automatic nullification of the agreement" (see Forsberg v Forsberg, 219 A.D.2d 615 [2d Dept 1995]).
The prenuptial agreement was properly signed by Plaintiff, and her signature was acknowledged by a notary public using an acknowledgment form that comported with the statutory requirements. Moreover, Plaintiff had the prenuptial agreement in her possession and had opportunity to seek counsel prior to executing the agreement, but chose not to; thus, Plaintiff could not plausibly claim that the agreement should be voided due to her self-imposed lack of representation. The absence of independent counsel during the transaction does not, under the circumstances presented here, warrant setting aside the prenuptial agreement.
Plaintiff asserts that the prenuptial agreement was signed under duress. Plaintiff was a Russian citizen who was in the United States on a tourist visa that was expiring at some future point that was not specified in testimony. (tr at 50). Plaintiff states that she was pressured into signing the prenuptial agreement or have no legal basis to remain in the United States. (tr at 49, lines 23-25). Plaintiff at no time has testified that execution of the prenuptial agreement was given as an ultimatum. Plaintiff has testified that she felt that "[e]ither I signed the [prenuptial] agreement and we continue being together and become legal and married, and if I don't, we'll just have to stop, we can't continue our relationship like that." (tr at 28, lines 21-24).
Plaintiff also testified that the proposal by Defendant was she should return to the United States and "we would live together and have a trial period and, if everything goes as expected, we should get married." (tr at 17, lines 1-3). Plaintiff's own testimony indicates that there was a possibility that she may need to return to Russia or make alternate arrangements to remain in the United States.
A party's threat to cancel their wedding, if prenuptial agreement is not signed, is not sufficient to establish duress. (see Hof v Hof, 131 A.D.3d 579 [2d Dept 2015]). In contract law, to establish a claim for duress, Plaintiff must allege that she was compelled to agree to contract by means of a wrongful threat that precluded the exercise of her free will. (see C.B.S. Rubbish Removal Co. v Winters Waste Servs. of NY, Inc., 18 A.D.3d 790 [2d Dept 2015], citing Fruchthandler v Green, 233 A.D.2d 214 [1st Dept 1996]). The Plaintiff had multiple options regarding the prenuptial agreement, but Plaintiff chose to freely accept the terms of the prenuptial agreement in exchange for what she believed to be the path of least resistance for her and her daughter to remain legally in the United States. Plaintiff's contention that she signed the prenuptial agreement under duress is found to be without merit.
Plaintiff asserts that the terms of the prenuptial agreement are unconscionable and overreaching. Plaintiff hinges this on the allegation that the Defendant did not sufficiently explain all the terms of the agreement to the Plaintiff when he provided a copy of the agreement to the Plaintiff. Plaintiff further claims that Defendant did not fully disclose his specific assets and only generalized.
"An unconscionable bargain 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" (see Hershkowitz v Levy, 190 A.D.3d 835 [2d Dept 2021], quoting Morad v. Morad, 27 A.D.3d 626 [2d Dept 2006]). "However, an agreement is not unconscionable 'merely because, in retrospect, some of its provisions were improvident or one-sided'" (see Hershkowitz v Levy, 190 A.D.3d 835 [2d Dept 2021], quoting Schultz v Schultz, 58 A.D.3d 616 [2d Dept 2009]).
Plaintiff testified, when asked about her reaction to being asked to sign a prenuptial agreement before marriage, "my reaction was very positive, because I understand very well that he [Defendant] had a responsibility to his former wife and to his children and I never wanted to take what was promised to them." (tr at 23, lines 17-20). Plaintiff further testified that she had assets at the time of the agreement between $20,000 and $30,000 (tr at 38, lines 18-20) and her 14-year-old minor daughter owned an apartment in Moscow. (tr at 38 and 39).
In executing the prenuptial agreement, both parties had plans, goals, and interests that they wanted to protect. Defendant, having been previously divorced and had obligations to his ex-wife and children sought to protect his assets. Defendant clearly wanted to maintain the status quo, if the marriage failed, with each party leaving the marriage with the same ratios of assets as their contributions to the marriage.
Plaintiff, also previously divorced, sought an immediate resolution to her as well as her daughter's visa issues. Plaintiff sought what she perceived to be the path of least resistance for remaining with her daughter in the United States. Plaintiff testified to having had the goal of entrepreneurship and took classes to become a licensed Esthetician with the aim of opening a beauty salon. (tr at 21). In our uncertain financial times, the agreement protected Plaintiff's future financial assets as well as Defendants.
At the hearing, the Court heard credible testimony, that all of the books that were part of her coursework were written in the English language.
"Agreements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith" (see Christian v Christian, 42 N.Y.2d 63 [1977]). "[C]ourts may look at the terms of the agreement to see if there is an inference, or even a negative inference, of overreaching in its execution. If the execution of the agreement, however, be fair, no further inquiry will be made." (see Christian v Christian, 42 N.Y.2d 63 [1977]).
Plaintiff further asserts that the Defendant allegedly failed to truthfully disclose his financial circumstances to the Plaintiff prior to the agreement's execution. Plaintiff alleges that Defendant did not sufficiently explain the terms of the prenuptial agreement to Plaintiff. While the Defendant did tell the Plaintiff that he owned a construction company and the house in Staten Island, Defendant did not disclose the value of his assets and business interests. Plaintiff also states, "Defendant provided in the agreement that his annual income is 'approximately $42,000', but never mentioned that he had $200,000 in home equity and $127,000 in a savings account." (NYSCEF Doc No. 28 at 5).
Plaintiff is a native of Russia and her primary language is Russian. Plaintiff testified that at the time she met the Defendant in 2015 she was able to communicate with Defendant in English and was able to understand about 70 percent of what Defendant said. (tr at 12, lines 23-24). Plaintiff would also use Google Translate to facilitate communication. (tr at 13, lines 2-5).
When the Plaintiff and Defendant met in 2015, Plaintiff was already a highly educated person, who graduated college with an engineering degree in 1993 and obtained an additional qualification in 2002 in a non-diploma program. (tr at 36, line 13 and 22-23). Typically, engineering degree programs entail the study of math, science, technology, and some business principles. Plaintiff even dabbled in the Moscow real estate market with her brother and minor daughter. Plaintiff testified, "When there was an opportunity to privatize that government apartment [they were living in], we did so, and sold it immediately and split the money three ways. Some sum was mine, some sum was my daughter's and the rest went to my brother. And we bought my daughter the apartment." (tr at 39, lines 3-7).
Plaintiff was provided with the document approximately two weeks before the marriage license would expire. (tr at 29, line 16). The two-week period was a soft deadline. The expiration of the marriage license only meant a renewal of the license would have been necessary. During this period, the prenuptial agreement was in the sole possession of the Plaintiff. Plaintiff had no restriction that would have prevented her from having the document translated for her or translating it herself with the Google Translate that she was already familiar with. Plaintiff was even free to consult an attorney to advise her. Plaintiff, an intelligent, educated, and experienced individual, chose to enter a binding contract without even reading it. (tr at 52, line 7).
Plaintiff also testified that during Defendant's June 2015 visit with her in Russia prior to her return to the United States with Defendant and her daughter, they discussed the Defendant's financial situation. Plaintiff testified, "He owned a medium-size construction company, and he also, together with his ex-wife, owned the house in Staten Island where his ex-wife and his two kids also lived and where he lived in the basement." Plaintiff further stated, "at some point, that house would go up for sale, and some money from that sale would go to his ex-wife and his two kids and the remainder would just be for them to live on." Plaintiff's own testimony acknowledges from the earliest stage of their relationship there was an understanding that Defendant's assets were earmarked for other parties. (tr at 18-19).
At the time the prenuptial agreement was presented to the Plaintiff that Defendant, "asked me to sign some sort of document. And he did explain to me that it was a prenup, and that would allow him to keep his promises to his former wife and to his family. And, basically, what he explained to me is that would mean that I wouldn't be able-if something goes wrong with our marriage, I wouldn't be able to take something that he owes to his previous family." (tr at 23, lines 4-10).
Plaintiff further testified when asked about her reaction to being asked to sign a prenuptial agreement, "my reaction was very positive, because I understand very well that he had a responsibility to his former wife and to his children and I never wanted to take what was promised to them." (tr at 23, lines 17-20).
Plaintiff testified that the parties began living together approximately a month after her arrival in the United States. (tr at 22, lines 3-5). Plaintiff further testified that she arrived in the United States with approximately $35,000.00 to $40,000.00 (tr at 46, lines 5-7), paid half of all the parties' apartment expenses for the first six months (tr at 45, lines 17-19), and Plaintiff paid for classes and fees to become licensed as an Esthetician and wanted to start working as soon as possible (tr at 21).
It is true that other than the Defendant's approximate annual income, no value of Defendant's assets is provided. It is also true that no value or assets were provided regarding the Plaintiff's assets. Allegations have been raised by the Defendant regarding the ownership of the apartment he stayed in with the Plaintiff in Moscow, but no documentation has been provided to refute the Defendant's claim nor support the Plaintiff's claim that her minor daughter was the sole owner of this apartment. The testimony indicates that there were no surprises in terms of assets. Plaintiff freely chose to accept the agreement proposed to her that was in sync with prior conversations with the Defendant that occurred in the earliest phases of their relationship.
The parties were not impulsive teenagers, prone to making life-affecting decisions on a whim. On the contrary, the parties were mature adults in their 40s and 50s, previously married, with children from these prior marriages. They were exactly the type of people, having been through a divorce, that would want to protect their assets from a second possible divorce.
Plaintiff did travel to the United States for her third visit with her daughter with the only guarantee being "we would live together and have a trial period and, if everything goes as expected, we should get married." (tr at 17, lines 1-3). Plaintiff's own testimony indicates that there was a possibility that she may need to return to Russia or make alternate arrangements to remain in the United States. Plaintiff could not reasonably have expected that merely setting foot on U.S. soil with the Defendant would mean she would be supported by him in perpetuity. Plaintiff's very conduct of approving of Defendant's statements regarding his requirements to protect his assets for his ex-wife and children, paying half the expenses for the first six months, and seeking to better her employment prospect support the concept that if this relationship did not work out, she was aware she would have to support herself and her child.
The facts in the case cited by the Plaintiff, Rabinovich v Shevchenko, 93 A.D.3d 774 [2d Dept 2012], are strikingly different to the present case. Plaintiff in this matter understood that she was being given a prenuptial agreement as well as the sum and substance of it, she had a working knowledge of the English language, and she had at least two weeks, and perhaps even an unlimited amount of time (as she could have opted to renew the license, and there were no lavish plans for a spectacular wedding celebration on the horizon) to have the document translated and consult an attorney. Plaintiff made a thoughtful and conscious decision to sign the prenuptial agreement without translating it or seeking the advice of counsel. Whether she made the right decision or the wrong decision, is not for this Court to decide. The fact remains that she made a decision, of her own free will, to sign the agreement.
"An agreement between spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability" (see Rabinovich v Shevchenko, 93 A.D.3d 774 [2d Dept 2012]). "A spouse seeking to set aside a postnuptial agreement initially 'bears the burden to establish a fact-based, particularized inequality'" (see Petracca v Petracca, 101 A.D.3d 695 [2d Dept 2012]).
The Plaintiff has not met the burden of proof required to set aside the prenuptial agreement. Plaintiff acted freely and of her own volition in entering the prenuptial agreement with the Defendant. Plaintiff is a highly educated and mature person, who not only expected to be presented with a draft prenuptial agreement, but expressed support for such an agreement acknowledging Defendant's prior familial and moral obligations, that he articulated to her.
Plaintiff was not represented by an attorney, but Plaintiff had the time and resources to seek counsel as well as translation of the agreement if she had chosen to do so. Plaintiff being unrepresented in and of itself does not establish overreaching or require an automatic nullification of the prenuptial agreement. (see Forsberg v Forsberg, 219 A.D.2d 615 [2d Dept 1995]).
Plaintiff fails to establish that the agreement was signed under duress. There were no threats or ultimatums issued by the Defendant demanding that she sign the prenuptial agreement. Threats of cancelling a wedding are not even sufficient to constitute duress. (see Weinstein v Weinstein, 36 A.D.3d 797 [2d Dept 1995]). In this matter, the only imminent deadline that has been proposed with any specificity is the expiration of the marriage license, which could have easily been remedied by a renewal. The immanency of the expiration status was not provided in testimony or evidence. Further, the Plaintiff's living arrangement was described in her testimony as being on a trial basis. (tr at 17, lines 1-3).
Plaintiff does not establish that the agreement was unconscionable and overreaching. This was an agreement in which intelligent two middle-aged divorced people wanted to protect their assets. Both parties had children and either income or potential income and assets that they wanted to protect in the event their marriage failed. This was an agreement that an honest and fair person, particularly one who had previously been through a divorce, would accept. (see Taha v Elzemity, 157 A.D.3d 744 [2d Dept 2018]). The terms of the agreement were proliferated repeatedly by the Defendant from the earliest steps of the relationship and Plaintiff testified that she agreed with him. There is no evidence that the Defendant used concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception to constitute overreaching in the execution of the prenuptial agreement. (see Gottlieb v Gottlieb, 138 A.D.3d 30 [2d Dept 2018]).
Neither party provided a dollars and cents accounting in the prenuptial agreement. Testimony indicates that the Plaintiff was aware of the assets owned by the Defendant, if not the actual value. Defendant had a much vaguer idea of the Plaintiff's financial assets, particularly of assets outside of the United States. A failure to disclose financial matters, by itself, is not sufficient to set aside a prenuptial agreement. (see Gottlieb v Gottlieb, 138 A.D.3d 30 [2d Dept 2018]).
The Court DENIES the Plaintiff the relief requested in Motion Sequence #001 in its entirety.
The Court GRANTS the Defendant the relief requested in Motion Sequence #002 finding the prenuptial agreement valid and enforceable.
Decretal Paragraphs
ORDERED, that the relief sought by E.K. in Motion Sequence #001 is DENIED.
ORDERED, that the relief sought by C.K. in Motion Sequence #002 is GRANTED.
Any relief requested, and not specifically addressed in this Decision and Order is referred to the trial court.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.