Opinion
18939/95.
Decided June 1, 2004.
Upon the foregoing papers, plaintiff Andrea Summerlin moves, by order to show cause, for an order directing defendant Wayne Summerlin to pay arrears and thereafter continue to make payments in accordance with a previous agreement allegedly made by the parties. Defendant cross-moves, pursuant to CPLR 3211 (a) (5) and (a) (7), for an order dismissing plaintiff's application based upon res judicata, and plaintiff's failure to state a cause of action, respectively.
BACKGROUND
This post-judgment application, instituted by order to show cause, arises out of an uncontested matrimonial proceeding that culminated with the issuance of a Judgment of Divorce, dated November 6, 1995. As alleged, plaintiff and defendant were married in 1970 and sometime in 1975 purchased a house located at 186 Ilion Avenue, St. Albans, New York, together as husband and wife. In 1988, defendant retired from his position with the New York City Police Department, and commenced receiving pension benefits in the approximate amount of $1800 per month.
Plaintiff and defendant separated in January 1989. At that time, the couple's two sons, Wayne Jr. and Curtis, 16 and 12 years old respectively, continued to reside with the plaintiff in the marital home.
At or about the time they separated, plaintiff and defendant reached an oral agreement that constitutes the core issue of this motion. Defendant alleges that in full acknowledgment of his obligation to pay child support for his two sons and without consulting an attorney, he agreed with plaintiff to give her 50% of his retirement income, or $900 per month, for that purpose. Accordingly, the pension check would be mailed to defendant at plaintiff's address; by defendant's account, one of his sons would bring it to defendant and he would endorse the check. Defendant would then cash the check and retain 50%, and remit the remaining 50% to plaintiff.
While not disputing that defendant had agreed to pay, and plaintiff had agreed to accept, the monthly sum of $900, plaintiff contends that the oral agreement provided that the proceeds were payable to her for her own use in satisfaction of any and all equitable distribution claims that she might have as to same. She goes on to assert that there was no provision made in any written agreement [or in the judgment] for child support, maintenance and/or equitable distribution.
Shortly after defendant left the marital residence, the parties commenced discussions regarding its disposition. Each party contends that the other insisted that plaintiff pay defendant $20,000 in consideration of his interest in the marital residence. It is, however, undisputed that pursuant to this oral agreement, defendant accepted that amount from plaintiff, without seeking legal counsel, in return for relinquishing his ownership rights to the property. Title was transferred and currently remains in the plaintiff's name.
In 1995, plaintiff initiated divorce proceedings, retaining William L. Ostar, Esq., to represent her. Defendant chose not to retain separate counsel and, after meeting with Mr. Ostar, agreed to an uncontested divorce. The Judgment of Divorce (Kenny, Sp. Ref.) was signed on November 6, 1995 and entered in the office of the Kings County Clerk on November 13, 1995. The Judgment awarded plaintiff a divorce and custody of Curtis, but was silent on the issues of child support and equitable distribution. Nevertheless, defendant continued to pay plaintiff $900 per month, although at the time of the parties' divorce, Wayne Jr. was 22 years old and Curtis was 18 years of age. The payments continued every month until May, 2003, when he informed her that he would no longer continue doing so.
Plaintiff had apparently at one time worked for Mr. Ostar.
By this application, plaintiff seeks an order directing that defendant resume making payments to her. In opposition, and as incorporated in his cross motion, defendant, contending that he has since learned that his obligations to provide child support had actually ceased in 1998 when Curtis had reached the age of majority, asserts that plaintiff's claim for relief should be denied as it is not supported by a written agreement, and in any event, plaintiff has received more than her rightful allotment of marital property under equitable distribution.
DISCUSSION
Domestic Relations Law § 236 (B) (3) provides that a nuptial agreement made before or during the marriage must satisfy three requirements to be "valid and enforceable in a matrimonial action": the agreement must be in writing; it must be subscribed by the parties; and it must be "acknowledged or proven in the manner required to entitle a deed to be recorded". Strict compliance with the requisite formalities explicitly specified in the statute is mandated ( see Matisoff v. Dobi, 90 NY2d 127, 131-132, [where the Court of Appeals, in reversing the order of the Appellate Division which validated an unacknowledged written post-nuptial agreement, held that "[u]nder the Appellate Division analysis, the enforceability of an unacknowledged nuptial agreement would vary with the original motivation of the party challenging the agreement and whether the couple's behavior during the marriage was consistent with the terms of the agreement. Such uncertainty is contrary to the plain language of Domestic Relations Law § 236 (B) (3) . . ."]; but see Nordgren v. Nordgren, 264 AD2d 828 [necessity for a written and fully executed agreement is dispensed with when both parties are present and stipulate on the record in open court] and Rubenfeld v. Rubenfeld, 279 AD2d 153 [oral agreement regarding disposition of marital property, entered into in open court during divorce proceedings, following appropriate allocution and incorporated but not merged into divorce decree, was binding even though formalities contained in § 236 (B) (3) were not observed]). Moreover, in setting forth a bright-line rule where, in Matisoff, it mandated a proper acknowledgment as a predicate for an enforceable written nuptial agreement, the Court of Appeals went so far as to hold that "Domestic Relations Law § 236 (B) . . . does not incorporate the safeguards of the Statute of Frauds. Rather, it prescribes its own, more onerous requirements for a nuptial agreement to be enforceable" ( Matisoff, 90 NY2d at 134; see also Rupert v. Rupert, 97 NY2d 661). Thus, although plaintiff correctly argues that the defendant's pension earned during their marriage and prior to the commencement of the matrimonial action is marital property subject to equitable distribution ( see Fagan v. Fagan, 2 AD3d 394), it is clear that the provisions of Domestic Relations Law § 236 (B) (3) and the Court of Appeal's holding in Matisoff applies with equal force to wholly oral, as well as defectively-executed written agreements. As a result, plaintiff's reliance on the purported terms of the oral agreements both with regard to the intended purpose of defendant's monthly payments, and the circumstances surrounding plaintiff's payment of $20,000 for title to the marital home, is unavailing, and plaintiff cannot now seek enforcement of an agreement that fails to meet the basic statutory requirement ( see Barbuto v. Barbuto, 286 AD2d 741, 743 [where the Appellate Division, in holding that defendant failed to prove that the plaintiff orally agreed to waive her right to any portion of his pension in exchange for his financial aid in helping her attain an associate's degree, further observed that "in any event, such an agreement would be unenforceable."])
Moreover, the unambiguous language in Matisoff defeats plaintiff's reliance on a theory of ratification based upon her averment that defendant's monthly payments, which continued beyond the majority and emancipation of both sons, served as ratification of the parties' alleged oral agreement. Decisions cited by plaintiff in support of this assertion, such as Perkins v. Perkins ( 226 AD2d 610) and DiSanto v. DiSanto ( 198 AD2d 838), are inapposite. In Perkins, the parties reached an agreement to sell a jointly owned cooperative apartment and divide the proceeds therefrom. By contrast with the facts in the case at bar, the Appellate Division found that it was clear that the agreement was both made and fully performed during the marriage and long before the commencement of the matrimonial action ( Perkins, 226 AD2d at 610). In DiSanto, the Appellate Division, in addressing the Supreme Court's equitable distribution of marital property upon its review of a judgment of divorce from which an appeal was taken, credited certain voluntary payments plaintiff had made to defendant against defendant's claims that she was entitled to retroactive maintenance and child support. The court in DiSanto ruled that the award of title to the marital house to defendant was properly based upon plaintiff's representations, as supported by the record, that defendant would receive such title in return for reduced maintenance and support payments ( DiSanto, 198 AD2d at 838-839) (emphasis provided). As is readily apparent, the facts in DiSanto did not involve a belated attempt to enforce an oral agreement whose very existence was disputed by the party against whom enforcement was sought, following the issuance of the Judgment of Divorce. As defendant correctly asserts, any purported agreement regarding support would be barred by the holding in Matisoff.
It is unclear from the Perkins decision whether the subject agreement was oral or in writing.
Moreover, even assuming arguendo that the explicit holding in Matisoff was not applicable to the facts in the case at bar, the Statute of Frauds ( i.e., GOL § 5-701) would still render the alleged agreement unenforceable. In Thompson v. Thompson ( 294 AD2d 943), the Appellate Division affirmed the Supreme Court's denial of plaintiff's application to set aside, in whole or in part, the parties' written separation agreement which was incorporated but not merged into the divorce decree, or to reform it to incorporate an alleged oral promise by defendant to support plaintiff. The Court held that the purported oral promise was barred by the parol evidence rule as embodied by the express terms of the separation agreement, including its provisions with respect to "Modification and Waiver" and the agreement's merger clause, as well as by the Statute of Frauds ( id. at 944). It went on to hold that the defendant was not estopped from invoking the Statute of Frauds, since there was no proof that defendant made a particular misrepresentation of fact on which plaintiff relied to his detriment ( id. at 944). Similarly, plaintiff here has not only failed to meet the threshold requirements of Domestic Relations Law § 236 (B) (3) by coming forward with an agreement in writing whose terms she now seeks to enforce; she has also failed to demonstrate that she relied to her detriment on any representation purportedly made by defendant.
CONCLUSION
On this motion, plaintiff has failed to demonstrate the existence of an enforceable nuptial agreement. Moreover, having also failed to demonstrate that she had been deprived of a full and fair opportunity to litigate the issue of support in the uncontested divorce action which she commenced and where she was represented by counsel, plaintiff is barred by the doctrine of res judicata from now asserting a claim that she is entitled to relief under New York's equitable distribution laws ( see Boronow v. Boronow, 71 NY2d 284; see also O'Connell v. Corcoran, 1 NY3d 179). Accordingly, the cross motion is granted, and the plaintiff's motion is in all respects denied.
The foregoing constitutes the decision and order of the court.