Opinion
53660
02-23-2021
RM, Plaintiff, v. GM, Defendant.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls ( Paula Nadeau Berube of counsel), for plaintiff. Martin J. McGuinness, Saratoga Springs, for defendant.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls ( Paula Nadeau Berube of counsel), for plaintiff.
Martin J. McGuinness, Saratoga Springs, for defendant.
Robert J. Muller, J.
Plaintiff RM and defendant GM executed an Ante-Nuptial Agreement on July 7, 1992, with plaintiff being represented by counsel and defendant "declin[ing] to obtain [legal] counsel." This Ante-Nuptial Agreement provides, in pertinent part:
"Both parties understand, acknowledge and agree that prior to the marriage, neither has any interest whatsoever in the other's property nor do they have any of the rights and/or obligations as defined in Domestic Relations Law [§] 236, [p] art B. They further acknowledge and agree that absent this agreement, they would, upon marriage, acquire an unvested, contingent and undefined interest in all property acquired during the marriage and any increase in value to separate property where either party causes the property to increase in value, under Domestic Relations Law [§] 236, [p] art B. Both parties intend this agreement to be an ‘opt-out’ agreement as defined by Domestic Relations Law [§] 236, [p] art B, [s]ubparagraph 3 and intend to prevent the other from acquiring any rights whatsoever in any of their property under Domestic Relations Law [§] 236, [p] art B."
The Ante-Nuptial Agreement then reiterated in subsequent paragraphs that "[i]t is the unequivocal intent of the parties that they ‘opt out’ of Domestic Relations Law § 236 (B) as respects marital property or any increases, changes, exchanges, or other modifications of the ‘separate property’ even though said property or increase thereto may have occurred subsequent to their impending marriage" with "separate property" defined as "[p]roperty acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party including the spouse."
The Ante-Nuptial Agreement further provided that "[t]hat any judgment, debt, lien, liability or other obligation not directly attributable to an item of property ... shall be the sole responsibility of the party incurring same as indicated in any judgment or other document evidencing the debt[,]" and "[w]ith respect to joint debts (those debts incurred by the parties together), each party shall be responsible to repay one-half (1/2) of said obligation." Finally, the Ante-Nuptial Agreement included a provision whereby the "Agreement [could] not be changed, discharged or terminated orally."
The parties married on July 26, 1992 and had two children: the first born in 1994, the second in 1997. Plaintiff thereafter commenced this action for divorce by the filing of a summons with notice on February 17, 2010, alleging abandonment as grounds for the divorce ( see Domestic Relations Law § 170 [2] ). The parties thereafter executed a Stipulation of Settlement on April 23, 2010, with plaintiff agreeing to pay $400.00 per month to defendant for child support until the children "attain[ed] age twenty-one (21) years (twenty-two (22) years ... if ... attending college), [were] marrie[d], [or] ceased to permanently reside with the parent ... designated as the ‘custodial parent.’ "
The Stipulation of Settlement further provided as follows:
"Each party represents and warrants to the other that there are no debts or obligations that either has incurred which are not identified on the Schedule of Debts. In the event that a party has incurred a debt or obligation not so identified [he or she] shall be solely responsible for repayment of such unidentified loans or obligation. Neither party will at any time in the future, incur any debt or obligation whatsoever for which the other party, his or her heirs, representatives, and successors and assigns, may be or become liable, and shall hold the other party, his or her heirs, representatives, and successors and assigns harmless and indemnified from any and all debts and obligations."
The Schedule of Debts attached to the Stipulation of Settlement then indicates that neither party has any debts or obligations.
Neither party was represented by counsel relative to the execution of this Stipulation of Settlement.
Defendant also executed an affidavit on April 23, 2010 "admit[ting] service of the [s]ummons with [n]otice[, and] consent[ing] to [the] action being placed on the uncontested divorce calendar immediately."
The action then sat dormant until September 19, 2019, at which time plaintiff — then pro se — filed a note of issue, among other things, in an effort to finalize the divorce ( see Domestic Relations Law § 211 ). In response, defendant — through counsel — filed a motion to dismiss the action. By letter Order dated January 14, 2020, this motion was granted to the extent that (1) the statements set forth in the affidavit executed by defendant on April 23, 2010 were disregarded, with the exception of the statement admitting service of the summons with notice; (2) the note of issue filed on September 19, 2019 was vacated; and (3) defendant's time to file a notice of appearance and demand for complaint was extended to February 14, 2020.
Defendant subsequently served his notice of appearance and demand for complaint on January 17, 2020. Plaintiff then served her complaint on February 14, 2020, this time alleging cruel and inhuman treatment and irretrievable breakdown of the relationship as grounds for the divorce ( see Domestic Relations Law § 170 [1], [7] ). Defendant served an answer on March 2, 2020, asserting a counterclaim for divorce on the grounds of irretrievable breakdown of the relationship ( see Domestic Relations Law § 170 [7] ). Defendant also asserted a counterclaim relative to an alleged agreement he had with plaintiff whereby he "performed work on ... the parties' formal [sic] marital home in Chestertown and a cabin in North Creek, ... both of which were owned by [p]laintiff or her family prior to the parties' marriage[, with p]laintiff promis[ing that he could have] lifetime use of the properties in exchange." Defendant seeks damages in "the fair market value of the work he performed." Finally, defendant asserted a counterclaim alleging that "[d]uring the course of the marriage, [he] took out a credit card in his name ... because [p]laintiff had bad credit[, and] the parties spent thousands of dollars on the card that was not paid which resulted in a default on the debt." Defendant alleges that "[p]laintiff is equally liable for [the] marital debt, along with all other debt incurred during the course of the marriage."
In June 2020, plaintiff served a document which appeared to be a response to these counterclaims, which document was rejected by defendant as untimely. Plaintiff thereafter retained counsel in July 2020, with counsel for plaintiff filing a second note of issue on September 25, 2020. Presently before the Court is (1) plaintiff's motion "seeking to file a [r]eply to [d]efendant's [c]ounterclaims in the divorce action, summary judgment [and] a Judgment of Divorce against defendant which incorporates, but does not merge, [the] Stipulation of Settlement, together with an award of attorney's fees and costs in the sum of $5,000.00; and (2) defendant's cross motion to amend his answer. The motion and cross motion will be addressed ad seriatim.
Defendant had also filed a Notice of Motion dated October 14, 2020 which included the affirmation of Martin J. McGuinness, Esq. dated October 14, 2020 together with Exhibits "A" through "F" to vacate the second note of issue which motion was held in abeyance pending the outcome of this motion and cross motion. The same is attended to herein to abide the present Decision and Order.
Plaintiff's Motion
At the outset, defendant concedes that his answer was served just prior to the start of the COVID pandemic and, as such, plaintiff's time to reply was tolled by the several Executive Orders issued by the Governor. Defendant thus does not oppose the first aspect of plaintiff's motion seeking permission to reply to his counterclaims.
Specifically, plaintiff's time to reply was tolled under Executive Order 202.8 — issued on March 20, 2020 — until April 19, 2020. Executive Order 202.55 — issued on August 5, 2020 — then extended this toll to September 4, 2020; and Executive Order 202.60 — issued on September 4, 2020 — extended it to October 4, 2020. Plaintiff then filed her motion on October 5, 2020.
Insofar as the second aspect of the motion is concerned, CPLR 3212 (b) provides that "[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions." Here, the complaint annexed to the motion papers is different than the complaint that was filed and served upon defendant. While the differences are largely inconsequential and can likely be disregarded as "defects[s] or irregularit[ies]" under CPLR 2001, neither version of the complaint makes any reference to the parties' Stipulation of Settlement. This of course is the more significant issue, as summary judgment cannot be awarded for relief which has not been requested in the complaint ( see Encarnacion v Manhattan Powell , 258 AD2d 339 [1999] ). Additionally, the grounds for divorce set forth in the complaints do not conform with the grounds set forth in the summons with notice. The grounds for divorce upon which plaintiff seeks summary judgment are thus unclear as well.
Although unclear, it appears that plaintiff attempted to handwrite duplicate originals of the complaint but failed to make them exact duplicates. For example, one indicates that the parties were married in the "Town of Chestertown" while the other simply states that the parties were married in "Chestertown."
It must also be noted that summary judgment cannot be awarded where issue has not yet been joined ( see CPLR 3212 [a] ). To the extent that plaintiff has not yet served a reply to defendant's counterclaims, she is not entitled to summary judgment dismissing them as a matter of law — which would be necessary for issuance of the Judgment of Divorce.
Under the circumstances, the second aspect of plaintiff's motion is denied. Likewise plaintiff is not entitled to attorneys' fees or costs at this juncture and the third aspect of the motion is also denied.
Plaintiff may renew this aspect of the motion seeking summary judgment, but she must first amend her complaint to seek incorporation of the Ante-Nuptial Agreement and Stipulation and Settlement, and she must also serve a reply to defendant's counterclaims.
Based upon the foregoing, plaintiff's motion is granted to the extent that she may serve a reply to defendant's counterclaims, and that the motion is otherwise denied.
Defendant's Cross Motion
Defendant is seeking to amend his answer to add two additional counterclaims: (1) that the Ante-Nuptial Agreement is "unconscionable, unenforceable and should be set aside"; and (2) plaintiff failed to pay child support as required under the Stipulation of Settlement.
"Pursuant to CPLR 3025 (b), a party may amend its pleadings ‘at any time by leave of [the] court,’ which ‘shall be freely given upon such terms as may be just’ " ( NYAHSA Servs., Inc., Self—Ins. Trust v. People Care Inc. , 156 AD3d 99, 101 [2017] ; see Kimso Apts., LLC v Gandhi , 24 NY3d 403, 411 [2014] ). The Appellate Division, Third Department "previously adhered to a rule requiring the proponent of a motion for leave to amend a pleading to make a sufficient evidentiary showing to support the proposed claim’ " ( NYAHSA Servs., Inc., Self—Ins. Trust v People Care Inc. , 156 AD3d at 101-102, quoting Cowsert v Macy's E., Inc. , 74 AD3d 1444, 1445 [2010] ). In other words, the movant had "to make an ‘evidentiary showing that the proposed amendments have merit’ " ( NYAHSA Servs., Inc., Self—Ins. Trust v People Care Inc. , 156 AD3d at 102, quoting Dinstber v Allstate Ins. Co. , 110 AD3d 1410, 1412 [2013] ). Recently, however, the Third Department "depart[ed] from that line of authority and follow[ed] the lead of the other three Departments, ... hold[ing] that ‘[n]o evidentiary showing of merit is required under CPLR 3025 (b) ’ " ( NYAHSA Servs., Inc., Self—Ins. Trust v People Care Inc. , 156 AD3d at 102, quoting Lucido v Mancuso , 49 AD3d 220, 229 [2008] ; see Cruz v Brown , 129 AD3d 455, 456 [2015] ; Holst v Liberatore , 105 AD3d 1374, 1374-1375 [2013] ).
"Thus, the rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, ‘[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ " ( NYAHSA Servs., Inc., Self—Ins. Trust v People Care Inc. , 156 AD3d at 102, quoting Lucido v Mancuso , 49 AD3d at 222 ; see Kimso Apts., LLC v Gandhi , 24 NY3d at 411 ; LaLima v Consolidated Edison Co. of NY, Inc. , 151 AD3d 832, 834 [2017] ; Cruz v Brown , 129 AD3d at 456 ). As stated by the Third Department, "[t]he rationale for adopting this rule is that the liberal standard for leave to amend that was adopted by the drafters of the CPLR is inconsistent with requiring an evidentiary showing of merit on such a motion" ( NYAHSA Servs., Inc., Self—Ins. Trust v People Care Inc. , 156 AD3d at 102 ). " ‘If the opposing party [on a motion to amend] wishes to test the merits of the proposed added cause of action or defense, that party may later move for summary judgment [or to dismiss] upon a proper showing’ " ( NYAHSA Servs., Inc., Self—Ins. Trust v People Care Inc. , 156 AD3d at 102, quoting Lucido v Mancuso , 49 AD3d at 229 [citation omitted]).
Here, plaintiff first contends that she "would be completely and utterly prejudiced if defendant were allowed to amend his answer more than 10 years after the action was commenced." She fails, however, to outline the prejudice she would suffer. Indeed, to the extent that plaintiff waited until September 2019 to finalize the divorce, this contention appears to be somewhat disingenuous. Circumstances have clearly changed in the last 10 years. In this regard, defendant's counterclaim relative to child support did not even exist at the time of commencement of the action.
Plaintiff next contends that defendant's counterclaim relative to the Ante-Nuptial Agreement is barred by the statute of limitations and thus patently devoid of merit. Plaintiff relies upon CPLR 213 (2), which establishes a 6-year statute of limitations for breach of contract causes of action. Such reliance is misplaced, however, as CPLR 213 (2) does not apply to prenuptial agreements like that under consideration herein. Rather, Domestic Relations Law § 250 applies, which provides as follows:
"1. The statute of limitations for commencing an action or proceeding or for claiming a defense that arises from an agreement made pursuant to [ Domestic Relations Law § 236 (B) ] entered into (a) prior to a marriage or (b) during the marriage, but prior to the service of process in a matrimonial action or proceeding, shall be three years.
"2. The statute of limitations shall be tolled until (a) process has been served in such matrimonial action or proceeding, or (b) the death of one of the parties."
Here, defendant was served with process on April 23, 2010 and, as such, the statute of limitations relative to the Ante-Nuptial Agreement expired on April 23, 2013 ( see Domestic Relations Law § 250 [1], [2] ). Accordingly, defendant's proposed counterclaim relative to the Ante-Nuptial Agreement is barred by the statute of limitations and shall not be permitted.
Finally, plaintiff contends that defendant's counterclaim relative to child support is patently devoid of merit because — in essence — she paid all child support due and owing. Specifically, plaintiff contends that the parties' son moved in with her shortly after the Stipulation of Settlement was executed and, as such, she was no longer required to pay child support for him. She further contends that the parties' daughter was emancipated as of 2013. While these contentions dispute the allegations in the counterclaim, they fail to demonstrate that such allegations are patently devoid of merit. The Court thus finds that this proposed counterclaim is permissible.
Based upon the foregoing, the cross motion is granted to the extent that defendant may amend his answer to assert the counterclaim relative to child support, and the cross motion is otherwise denied. Defendant shall serve his amended answer with cross claims within thirty (30) days of the date of this Decision and Order, and plaintiff shall then have twenty (20) days in which to submit her reply.
In view of this determination, the second note of issue filed by plaintiff on September 25, 2020 is hereby vacated, with counsel to appear for a conference on April 19, 2021 at 10:00 A.M. at the Warren County Courthouse to establish a new filing date for the same. This conference will be conducted virtually using Microsoft Teams.
Briefly, the Court notes that defendant filed a motion on October 14, 2020 seeking to vacate the second note of issue. This motion — which was held in abeyance pending the issuance of this Decision and Order — has now been rendered moot.
Therefore having considered the Affidavit of Paula N. Berube, Esq. with Exhibits "A" and "B" attached thereto, sworn to October 1, 2020, submitted in support of the motion; Affidavit of RM with Exhibits "A" through "K" attached thereto, sworn to October 1, 2020, submitted in support of the motion; Affirmation of Martin J. McGuinness, Esq. with Exhibits "A" through "M" attached thereto, dated November 2, 2020, submitted in opposition to the motion; Affirmation of Martin J. McGuinness, Esq. with Exhibits "A" through "C" attached thereto, dated November 2, 2020, submitted in support of the cross motion; Affidavit of Paula N. Berube, Esq. with Exhibits "A" through "C" attached thereto, sworn to November 11, 2020, submitted in opposition to the cross motion; Affidavit of Paula N. Berube, Esq. with Exhibits "A" through "F" attached thereto, sworn to November 11, 2020, submitted in further support of the motion; and oral argument having been heard relative to the motion and cross motion on February 5, 2021, with Paula Nadeau Berube, Esq. appearing on behalf of plaintiff and Martin J. McGuinness, Esq. appearing on behalf of defendant, it is hereby
ORDERED that plaintiff's motion is granted to the extent that she may serve a reply to defendant's counterclaims, and the motion is otherwise denied; and it is further
ORDERED that defendant's cross motion is granted to the extent that defendant may amend his answer to assert the counterclaim relative to child support, and the cross motion is otherwise denied; and it is further
ORDERED that defendant shall serve his amended answer with cross claims within thirty (30) days of the date of this Decision and Order, and plaintiff shall then have twenty (20) days in which to submit her reply; and it is further
ORDERED that the second note of issue filed on September 25, 2020 is vacated, and it is further
ORDERED that counsel shall appear for a conference on April 19, 2021 at 10:00 A.M. at the Warren County Courthouse to discuss a new date for filing of the note of issue, with this conference to be conducted virtually using Microsoft Teams; and it is further
ORDERED that defendant's motion to vacate the second note of issue is hereby deemed withdrawn as moot.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated October 1, 2020, Notice of Cross Motion dated November 2, 2020 and the submissions enumerated above. Counsel for defendant is directed to obtain a filed copy of the Decision and Order for service with notice of entry upon counsel for plaintiff in accordance with CPLR 5513.