Opinion
No. 309652/12.
07-03-2014
M, Plaintiff, v. M, Defendant.
Casey Greenfield, Greenfield Labby LLP, New York City, for plaintiff. Jessica L. Leonard & Jacqueline Newman, Berkman Bottger Newman & Rodd, LLP, New York City, for defendant.
Casey Greenfield, Greenfield Labby LLP, New York City, for plaintiff.
Jessica L. Leonard & Jacqueline Newman, Berkman Bottger Newman & Rodd, LLP, New York City, for defendant.
Opinion
ELLEN GESMER, J.
In this matrimonial action, plaintiff M (Wife) moves for an order: (1) setting aside the “Escritura De Capitulaciones Matrimoniales Otorgada” dated June 27, 2001, and signed by the Wife and the defendant M (Husband) (the Agreement); and (2) awarding the Wife additional interim counsel fees. The Husband opposes the motion.
FACTS
The background facts of this matter are discussed in this court's pendente lite decision and order dated March 20, 2014 (the March Order), and will not be repeated in their entirety here.
The Wife was born in the Dominican Republic and has Italian citizenship, and the Husband is a citizen of Spain. On June 27, 2001, they signed the Agreement in Madrid, Spain. It purports to govern the disposition of property in the event of marriage and divorce. Specifically, it states that “they marry in a system of absolute separation of property.” It is silent as to choice of law. At the time the parties signed the Agreement, the Wife was separated, but not yet divorced, from her prior husband. The Agreement recites the Husband's residence as Madrid, Spain and lists his Spanish ID number. It recites that the Wife is “of Spanish nationality,” and lists her Italian ID card number.
The March Order states that both parties were born in the Dominican Republic. It is not clear on the instant papers where the Husband was born.
As discussed in the March Order, the certified English translation of the Agreement attached to the motion papers does not appear to contain a waiver of maintenance or counsel fees, and neither party claims that it does.
The parties were married in the Dominican Republic on December 12, 2002. Their marriage certificate, a certified translation of which is attached to the Wife's moving papers as Exhibit B, and the certification issued by the Office of Vital Statistics from the 11th Circumscription of the State Distrito Nacional, county of Santo Domingo, Dominican Republic, a certified translation of which is attached to the Wife's moving papers as Exhibit C (Vital Statistics Certificate), both list the Husband as a Spanish citizen, domiciled in Spain. They list the Wife as an Italian citizen, domiciled in Spain.
One year after the parties married, they purchased a residence in New York (the Apartment) and subsequently moved there in June 2004. They separated in or about mid–2008.
The Wife commenced this action on July 11, 2012. The Husband's Answer interposes the Agreement as an affirmative defense to the Wife's request for equitable distribution.
The Wife is not employed at this time. She presently resides a majority of the time in the Apartment in New York, and spends the remainder of her time in Italy. The Husband is self-employed and resides in Madrid.
The Wife alleges that she never read the Agreement before signing it, that no one else read it to her, and that no formalities, particularly an oral recitation of the Agreement, were conducted when it was signed. She does not recall a notary being present when she signed, although the document contains the signature of a Spanish notary. She claims that the Husband brought her to the office of his attorney, and asked her to sign an “accounting document to help him protect assets from business dealings,” which the Husband's attorney had drafted. She claims she never saw the document before the evening she signed it, and never saw or discussed it with the Husband again until he raised it after commencement of this action.
The Husband disputes the Wife's claimed lack of awareness of the contents and significance of the Agreement. However, it is undisputed that the parties married more than one year after signing the Agreement, and that the Agreement has never been registered in Spain, where it was signed, or the Dominican Republic, where the parties married. Indeed, neither the marriage certificate nor the Vital Statistics Certificate makes any reference to the Agreement, and the Vital Statistics Certificate specifies that the parties were married under a “Legal Community Of Goods” regime, rather than the “system of absolute separation of property” recited in the Agreement.
ANALYSIS
“[D]uly 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 [2008] [internal quotation marks and citation omitted] ). This includes agreements executed in a foreign country, which are accorded the same presumption of legality as any other contract (see Stawski v. Stawski, 43 AD3d 776, 777 [1st Dept 2007], citing Greschler v. Greschler, 51 N.Y.2d 368 [1980] ). Generally, the party attacking the validity of a prenuptial agreement has the burden of coming forward with evidence showing that it is unenforceable. In particular, fraud “will not be presumed, and must have as its basis evidence of overreaching-the concealment of facts, misrepresentation or some other form of deception” (Stawski, supra at 777 [citing Matter of Sunshine, 51 A.D.2d 326 [1st Dept], affd 40 N.Y.2d 875 [1976]] ).
The Wife argues that the Agreement is invalid for three reasons. First, under the laws of the Dominican Republic, marriage is subject to a community property regime. Should a couple want to adopt a different regime, they may do so, but they must, prior to the marriage, sign an agreement before a notary public, which must be registered in the marriage certificate by the officer performing the marriage.
Here, the Agreement was never registered in the Dominican Republic. Second, the Wife argues that the laws of the Dominican Republic and of Spain both require that a prenuptial agreement is not enforceable if the parties do not marry within one year after its execution. Here, the parties were married more than one year and five months after the Agreement was signed. Finally, the Wife claims that the Agreement is invalid due to fraud.
The requirements of Dominican law are explained in the affidavit of an experienced matrimonial attorney admitted to practice law in the Dominican Republic, attached to the Wife's moving papers as Exhibit H. The Husband and his attorneys do not dispute the accuracy of his description of Dominican law.
The requirements of Spanish law are described in the affidavit of an experienced family lawyer admitted to practice law in Spain, attached to the Wife's moving papers as Exhibit G. The Husband and his attorneys do not dispute the accuracy of his description of Spanish law.
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The Husband does not dispute the Wife's first two arguments, but argues that she has failed to prove that the Agreement is the result of fraud or overreaching. He also does not dispute that the Agreement, which is silent as to choice of law, is governed by Spanish and/or Dominican law. “A basic precept of contract interpretation is that agreements should be construed to effectuate the parties' intent” (Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 NY3d 624, 629 [2006] ). The generally accepted rule is that “ ‘[a]ll matters bearing upon the execution, the interpretation and the validity of contracts ... are determined by the law of the place where the contract is made’ “ (Auten v. Auten, 308 N.Y. 155, 160 [1954] [citation omitted]; see also McKoan v. McKoan, 15 Misc.3d 1115[A] [Sup Ct Westchester Co 2007] ).
To the extent that there is a conflict about which jurisdiction's law governs the formation and interpretation of a contract, courts consider the totality of circumstances under a “center of gravity” or “grouping of contacts” to determine which law should apply (id. ). To determine which law governs, under the grouping of contacts theory of conflict of laws, the court must look to the following factors: “the place of contracting, negotiation and performance; the location of the subject matter of the contract; and the domicile of the contracting parties” (Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfs. Ins. Co.], 81 N.Y.2d 219, 227 [1993] ). Here, there is no dispute that the Agreement was drafted, negotiated and executed in Spain. Furthermore, at the time the parties signed the Agreement, they lived in Spain, a country of which the Husband is a citizen, and to which he returned after the parties separated. It is also clear that most of the parties' assets, with the exception of the Apartment, are outside of New York, and that the majority of them is in Spain.
Moreover, the court notes that the parties could not have intended for New York law to apply to the Agreement, since they moved to New York three years after it was executed and one year after they were married, and there is no claim that the parties intended to reside in New York at the time they signed the Agreement. Further, it would defy logic for the Husband, who was responsible for having the Agreement drafted, to intend for New York law to apply when he has such strong ties with Spain; namely that he: is a Spanish citizen; resided in Spain at the time the Agreement was signed, and resides there now; and works in Spain.
The court finds that the material and relevant contacts between the Agreement and New York do not outweigh those with Spain (see McKoan, supra; Crowther v. Crowther, 27 Misc.3d 1211[A] [Sup Ct Kings Co 2010] ). Therefore, the court looks to Spanish law with respect to its validity.
The court finds that the Agreement is invalid under Spanish law for two reasons. First, the Husband does not dispute that Article 1334 of the Spanish Civil Code provides that “[a]nything stipulated in a marital agreement in the case of a future marriage (prenuptial agreement) shall be rendered ineffective if the marriage does not take place within one year.” Since the parties' marriage took place nearly 18 months after the Agreement was signed, it is invalid for this reason alone.
Second, the Husband also does not dispute that Article 1333 of the Spanish Civil Code requires that, in order to be effective, prenuptial agreements must be recorded with the Civil Registry in the place where the marriage occurs, which was not done here. Accordingly, the Agreement is also invalid for this reason (see also Articles 1316 and 1344 of the Spanish Civil Code).
Furthermore, the Husband also does not deny that, pursuant to Article 1387 of the Civil Code of the Dominican Republic, if parties to a prenuptial agreement have chosen a different matrimonial property regime than that of community property, they must submit the duly executed prenuptial agreement to the Office of Vital Statistics before the marriage is performed, and the prenuptial agreement must also be registered in the Dominican Republic, pursuant to Article 1394 of the Civil Code of the Dominican Republic. Since it is undisputed that these steps were not taken, and the Vital Statistics Certificate provides that the parties were married under the “Legal Community of Goods” regime, it is also clear that the Agreement is invalid under Dominican law.
Since it is clear that the Agreement became void by operation of Spanish law when the parties failed to marry within one year after its execution, and that it is void under both Spanish and Dominican Republic law because the parties failed to register it with the appropriate civil authority, the court need not reach the Wife's claim that her signature was acquired by fraud or overreaching. Accordingly, the court grants the Wife's motion to the extent that it finds that the Agreement is void by operation of law.
Attorney's Fees
Section 237 of the Domestic Relations Law authorizes the court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstance of the case and of the respective parties (Johnson v. Chapin, 12 NY3d 461, 467 [2009];DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881 [1987];Dodson v. Dodson, 46 AD3d 305 [1st Dept 2007] ). The statute, as amended in 2010, creates “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.”
The Husband argues that the wife is not entitled to fees incurred in connection with this motion, citing Bradley v. Bradley (95 AD3d 780 [1st Dept 2012] ) and Schapiro v. Schapiro (204 A.D.2d 87, 88 [1st Dept 1994] ). However, Bradley is inapposite, since that case held that the matrimonial court was not authorized under DRL § 237 to award counsel fees to a spouse to defend against a different, non-matrimonial proceeding in another state. Shapiro held that the court could not award counsel fees to the Wife pursuant to Section 237 of the Domestic Relations Law in connection with the Husband's appeal of an order permitting the Wife to amend her complaint to interpose a counterclaim seeking rescission of a prenuptial agreement. However, that is different than the instant motion, which is essentially a summary judgment motion seeking to dismiss the Husband's assertion of the Agreement as an affirmative defense to the Wife's equitable distribution claim. This is the precise circumstance under which the Court of Appeals has stated an award of counsel fees under DRL § 237 to the less-monied spouse is not prohibited (Van Kipnis v. Van Kipnis, 11 NY3d 573 [2008];see also Heilbut v. Heilbut, 297 A.D.2d 233 [1st Dept 2002] ; Ventimiglia v. Ventimiglia, 36 AD3d 899 [2d Dept 2007] ). In Van Kipnis, the court reversed the summary denial by Supreme Court, affirmed by the Appellate Division, of the wife's request for counsel fees in connection with her opposition to the Husband's assertion in his Answer of a prenuptial agreement as an affirmative defense to wife's equitable distribution claims in her Complaint. In doing so, the Court of Appeals stated that the parties' dispute centers on whether the terms of the contract apply to the ownership of assets upon divorce. In this respect, [the wife's] request is similar to the fee application in Ventimiglia v. Ventimiglia (36 AD3d 899 [2d Dept 2007] ), where attorneys' fees were awarded to a party who contested her spouse's affirmative defense based on an antenuptial agreement. Remittal to Supreme Court for reconsideration is therefore necessary because this portion of wife's fee application should not have been excluded as a matter of law.
(Van Kipnis, supra at 579). Indeed, in Ventimiglia, supra, cited favorably by the Court of Appeals in Van Kipnis, supra, the court specifically distinguished the case relied upon by the Husband in this action, Schapiro, supra, finding that Section 237 of the Domestic Relations Law permits an award of counsel fees incurred by the less-monied spouse to enable him or her to oppose an affirmative defense based on a prenuptial agreement.
However, here, the Wife failed to comply with the Court Rules governing motions for counsel fees in matrimonial actions, since she did not attach to her motion a copy of her Net Worth Statement, her retainer agreement, and billing statements or other documentary proof of the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee....
(22 NYCRR § 202.16 [k] ). Therefore, the Wife's request for additional interim counsel fees is denied without prejudice to renewal upon proper papers.
In accordance with this decision, it is hereby
ORDERED AND ADJUDGED that the agreement signed by the parties in Spain and entitled “Escritura De Capitulaciones Matrimonial Otorgada” dated June 27, 2001 (the Agreement) is void by operation of law, and the Agreement is of no force and effect; and it is further
ORDERED that the Wife's request for an additional award of interim counsel fees is denied without prejudice to renewal upon proper papers, which shall include, at a minimum, a current Net Worth Statement, copy of her retainer agreement with counsel, and billing statements or other documentary proof of the sums billed by counsel, paid to counsel, and the work performed; and it is further
ORDERED that all relief requested but not granted above is denied.