By: M. B., Plaintiff v. S. P., Defendant, 53670/11

ATTORNEYS: Plaintiff's Counsel: Marti Martin E. Friedlander, PC.Defendant's Counsel: Franklyn H. Snitow, Esq., Snitow, Kaufer, Holtzer and Millus, PC Attorney for the Children: Rhonda Weir, Esq.

Cite as: M. B. v. S. P., 53670/11, NYLJ 1202548106004, at *1 (Sup., KI, Decided March 19, 2012)

Justice Rachel A. Adams

Decided: March 19, 2012

DECISION and ORDER

The Agreement Domestic Relations Law is clear that: “[a] marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, un -less either: 1. Such marriage has been annulled or has been dissolved…” (DRL §6). Since it is undisputed that Mother was not divorced from her first husband when she married Father, the parties' marriage is void and could have been treat – ed as a nullity without court intervention. (Camp – bell v. Thomas, 73 AD3d 103 [2010]) However, the Legislature has specifically provided that the parties to a marriage in which one of the parties was still married to a previous spouse may seek a court dec – laration that the marriage is void: 5* An action to declare the nullity of a void mar -riage upon the ground that the former hus - band or wife of one of the parties was still liv -ing, the former marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former husband or wife.” (DRL §140[a]; see also De -Lyra v. DeLyra, 141 AD2d 75 [1988]) The parties have agreed that Mother will amend her pleadings and proceed with the instant action as one to declare the nullity of a void marriage in which case, pursuant to DRL §236 (B)(2), all the provisions of DRL §236 (B) are applicable. DRL §236 (B)(3) provides, in relevant part: 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 par – ties, and acknowledged or proven in the man – ner required to entitle a deed to be recorded. The Court of Appeals has held that a separation agreement signed by the parties, but not acknowl -edged in the manner required by DRL §236 (B)(3), is not enforceable in a matrimonial action. The Court explained that the Legislature had clearly prescribed acknowledgment as a condition for the validity of a matrimonial agreement, with no enumerated exceptions. Therefore, an unacknowl -edged agreement is invalid and unenforceable. (Matisoff v. Dobi, 90 NY2d 127 [1997]) The Matisoff holding has been applied to antenup -tial agreements as well as separation agreements. (D'Elia v. D'Elia, 14 AD3d 477 [2005][“P]arties' post-nuptial agreement was not properly acknowl -edged at the time that it was executed….The post-nuptial agreement cannot, therefore, serve as the basis for a determination that the marital residence, which was purchased by the plaintiff prior to the marriage, is now marital property.”]) 6* The Stipulation attests that neither the Hebrew nor the English version of the Agreement was ac knowledged in accordance with the requiremen of DRL §236 (B)(3). Despite, however, the undi puted facial invalidity of the Agreement, Husban presents, in support of his cross-motion to compe arbitration, several bases upon which, he argue the parties' agreement to arbitrate is enforceable. Husband argues in the first instance that, even where it is alleged that a contract is invalid, the court's role is confined to determining the valid – ity of the arbitration clause alone. If the arbitra – tion agreement is valid, any controversy as to the validity of the contract as a whole passes to the ar – bitrators. (Stoianoff v. New American Library, 148 AD2d 600 [1989], citing Matter of Prinze, 38 NY2d 570 [1976]; Matter of Hasho v. Forensic CPA, PC, 292 AD2d 386 [2002])) In addition, Husband argues that a party that par – ticipates in arbitration may not later challenge the authority of the arbitrators to arbitrate a dispute. (Matter of United Fed of Teachers, Local 2, AFT, AFL-CIO v. Board of Educ of City School Dist of City of New York, 1 NY3d 72 [2003][“a party that participates in arbitration may not later be seen to vacate the award by claiming it never agreed to ar – bitrate the dispute in the first place.”] The Stipula – tion indicates that, subsequent to the execution of the Agreement, the parties, apparently unable to resolve disputes arising from the Agreement, ap – peared twice before Rabbi H., on March 23, 2011 and April 14, 2011. The March session dealt with issues regarding the parties' children and the April session dealt with specific financial issues described below. 7* Finally, Husband argues that Mother has already maximized her benefits under the Agreement and is estopped from challenging the Agreement. Husband argues that several courts, including the Court of Appeals, have upheld the validity of matrimonial agreements lacking a proper acknowledgment on the basis of the doctrine of promissory estoppel. (Ru -pert v. Rupert, 97 NY2d 661 [2001]; Mahan v. Mahan, 29 AD3d 471 [2006]; Markovitz v. Markovits, 29 AD3d 460 [2006]; Mahon v. Moorman, 234 AD2d 1 [1996]; Matter of Sbarra, 17 AD3d 975 [2005]) This Court is unpersuaded by Father's efforts to avoid the Court of Appeals' explicit public policy rejection of a “subjective standard” regarding the enforceability of an unacknowledged matrimonial agreement: True, arguments can be made in support of the subjective standard espoused by the Ap -pellate Division. Most notably, a flexible rule would allow courts to examine all the circum -stances [surrounding execution of a matrimo -nial agreement] and overlook the absence of acknowledgment….[P]ersuasive policy argu -ments can also be made in favor of a rule that mandates compliance with the formality re -quired by the statute. Primarily, a bright-line rule requiring an acknowledgment in every case is easy to apply and places couples and their legal advisors on clear notice of the pre -requisites to a valid nuptial agreement. (Mati -soff, supra, 90 NY2d at 135-136) At the outset, the Court notes that custody of chil -dren, once a proper subject for arbitration, is no longer subject to arbitration based upon the public policy of this state as it has evolved over the years. (Glauber v. Glauber, 192 AD2d 94 [1993]) As stat -ed by the Second Department in Glauber: [W]e conclude that custody of and visitation with children [are not subject to arbitration] because this subject, “on its face”, is inappro – priate for resolution by arbitration. ( Matter of Sprinzen [Nomberg], 46 NY2d 623 [1979]) 8* It is well established, by both statute and case law, that contracts entered into by the parents with re -gard to the fate of their children are not binding on the courts. DRL §§70 and 240 impose the re -sponsibility upon the courts to make custody and visitation orders based upon the best interests of the child. Notwithstanding that custody agree – ments between parents are, in the usual case, to be given priority (Matter of Nehra v. Uhlar, 43 NY2d 242 [1977]), the responsibility of the courts always supersedes whatever bargain has been struck. The court must always make its own independent re – view and findings, and may award custody to one parent in the face of an agreement granting custody to the other if the best interests of the child requires it. (Eschbach v. Eschbach, 56 NY2d 167 [1982]; Friederwitzer v. Friederwitzer, 55 NY2d 89 [1982]) Father inconsistently argues that custody issues are arbitrable and concedes that they are not. How -ever, it is clear that the issues of custody and visita -tion are not arbitrable as a matter of law. Moreover, both parties have submitted the issues of custody and visitation to this Court's adjudication, pursu -ant to which, this Court, in September, 2011, ap -pointed an attorney for the child and, in January 2012 appointed a forensic evaluator. Insofar as the remaining financial issues, which would be susceptible of arbitration, are concerned, Father has failed to cite any court which has done what he asks this Court to do: enforce an unac -knowledged agreement in a matrimonial action, void on its face, on the basis of promissory estop -pel. Father relies on Rupert v. Rupert, 97 NY2d 661 [2001], which he describes as a case in which the “Court of Appeals has implicitly affirmed the valid -ity of the theory of promissory estoppel as a basis for the enforcement of the terms of an unacknowl - edged matrimonial agreement.” However, this as -sertion ignores the Court of Appeal's explicit pro -viso, in Rupert, that its dismissal of the non-final Appellate Division order “does not constitute an adjudication on the merits or an affirmance of the Appellate Division order.”(Rupert, supra at 663) 9* Father's other cases are distinguishable: Mahan v. Mahan, 29 AD3d 471 [2006] [concerned an agree- ment which was duly acknowledged]; Markovitz v. Markovits, 29 AD3d 460 [2006] [rejected a chal- lenge to the validity of the separation agreement because it was raised for the first time on appeal]; Mahon v. Moorman, 234 AD2d 1 [1996][the va- lidity of an acknowledged agreement was chal – lenged on ground of fraud and duress, requiring a hearing]; Matterof Sbarra, 17 AD3d 975 [2005] [the court held that an unacknowledged separa – tion agreement, which would be unenforceable in a matrimonial action, was enforceable in non- matrimonial actions.] In light of the above, this Court finds that DRL §236 (B)(3) and Matisoff have articulated an abso – lute requirement of acknowledgment. Father's re – maining arguments, even if they were not factually disputed, are attempted end-runs around a strong public policy requirement.6 *10 Pendente Lite Child Support and Maintenance The law is clear that, despite the subsequent in -validity of the parties' marriage, the children are deemed legitimate under DRL §24: A child heretofore or hereafter born of par-ents who before or after the birth of the child have entered into a civil, religious, or valid common-law marriage, in the manner au -thorized by the law of the place where the marriage takes place, is the legitimate child of both natural parents, notwithstanding that the marriage is void or voidable or is later an -nulled or judicially declared void. Both parents have, therefore, a legal obligation to support the children, including the provision of health insurance coverage. The Child Support Standards Act (CSSA) re -quires the court to direct the “non-custodial” par - ent to pay child support in an amount determined after application of a statutory formula and con -sideration of various factors. (DRL §240 and FCA §413) In awarding temporary child support, the Court must consider the guidelines contained in the CSSA (Domestic Relations Law §240 [1- b][c]) and may then consider factors which permit a devi -ation from the standard calculation as delineated in §240 [1-b][f], such as the financial resources of the custodial and non-custodial parent and those of the child[ren], and his or her educational or vocational needs and aptitudes, as well as the non-monetary contributions that the parents will make toward the well-being of the child[ren]. (Formato v. For -mato, 173 AD2d 274 [1991]). The award need not comport with the Child Support Standards Act. (Kyriazis v. Kyriazis, 260 AD2d 447 [1999]). A parent's child support obligation is not necessari-ly determined by his or her current financial condi -tion, but rather by his or her ability to provide sup -port. In setting a party's child support obligation, a court “is not bound by a party's actual reported in -come,” but may instead base the party's obligation upon his or her “actual earning capacity.”(Matter of Solis v. Marmolejos, 50 AD3d 691[2008]) The imputed income may properly be based upon “a parent's prior employment experience…or the in -come such parent is capable of earning by honest efforts, given his [or her] education and opportu -nities.” (Matter of Bibicoff v. Orfanakis, 48 AD3d 680 [2008]) In so doing, a court is afforded “consid -erable discretion.” However, “the calculation of the party's earning potential must have some basis in law and fact.” (Morille-Hinds v. Hinds, 87 AAD3d 526 [2011]) 11* DRL §240 (1-b)(k) provides that when a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross in -come, the court shall order child support based upon the needs or standard of living of the child, whichever is greater. (Matter of Kondratyeva v. Yapi, 13 AD3d 376 [2004]) Moreover, the case law is clear that a court is not bound by a party's repre -sentation of his or her income but rather by his or her ability to provide support. Insofar as Mother's request for temporary main -tenance is concerned, for all actions commenced after October 12, 2010, courts are required to apply a statutory mathematical formula in determining pendente lite maintenance awards. (DRL §236B[5-a][c].) Pursuant to DRL §236B(5-a)(c), after the statutory formula is applied to the parties' income, the calculated amount is considered the presump -tive award of temporary maintenance, unless the court finds that the presumptive award would be unjust or inappropriate based upon the 17 factors delineated in DRL §236B(5-a)(e)(1). In determining income for the purposes of calcu – lating temporary maintenance, the statute uses the definition of income as set forth in the Child Support Standards Act; annual income is defined as gross income, less FICA and New York City or Yonkers income taxes. The court is required to es – tablish the parties' support obligation “as a function of the income that is, or should have been, reflect – ed on the party's most recently filed income tax re – turn.” (Wallach v. Wallach, 37 AD3d 707 [2007]) 12* Unfortunately, neither party has submitted ad-equate financial information from which the Court can fashion even a temporary award of child support and maintenance and this Court finds no guidance in the parties' Agreement. Mother requests child support at the rate of $2,875, the amount set forth in the Agreement she has persuasively argued is void. Even if the Agreement itself were not void, this Court finds that the child support provision would be unenforceable. DRL §240 (1-b[h]) pro -vides that an agreement or stipulation between the parties must include a provision stating that the parties were advised of the provisions of the CSSA and that the basic amount of child support provid -ed for in the CSSA would “presumptively result in the correct amount of child support to be award -ed.” Further, if the agreement provides for different child support from what the CSSA would provide, the agreement must set forth the amount that the basic child support obligation would have been and the reasons why the parties did not provide for the CSSA amount in their agreement. (Shenkman, Practice Commentaries, C240:27D) Where an agreement does not comply with the statutory man -date, the agreement cannot be enforced as to child support. (Fessenden v. Fessenden, 307 AD2d 444 [2003]) By omitting the amount of the basic child support obligation, pursuant to the CSSA, and/or failing to indicate if this is a guidelines order or the reasons for deviating therefrom (if they in fact did deviate), the Agreement's child support provision is invalid and unenforceable. (DRL§ 240[1–b][h]; Campbell v. Campbell, 282 AD 2d 492 [2001]; Toussaint v. Toussaint, 270 AD2d 338 [2000]) 13* Neither party has submitted any tax returns or of-fered any explanation for the absence of income tax information. Mother has set forth an extrava -gant statement of her expenses in her statement of net worth, over $11,000 per month, from which it is impossible for this Court to calculate a reason -able standard of support based upon needs. It appears from the parties' submissions that Moth – er received a lump sum of $50,000 against which she was to withdraw child support payments in an agreed upon rate of $2,875 per month, which mon – ies may have, by now, run out. There is no infor – mation as to what Mother's and children's current source of income might be. Counsel Fees Finally, Mother has requested attorney's fees. DRL §237 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 circumstances of the case and of the respective parties. (Siclari v. Siclari, 291 AD2d 392 [2002], citing DeCabrera v. CabreraRosete, 70 NY2d 879 [1987]) There is a rebuttable pre – sumption that counsel fees shall be awarded to the less monied spouse. DRL §237(a) An award of in – terim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award “is appropriate ‘to prevent the more affluent spouse from wearing down or financially punish – ing the opposition by recalcitrance, or by prolong – ing the litigation.'” (Gober v. Gober, 282 AD2d 392 [2001]) If the playing field were not leveled by an award of interim counsel fees, “a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior) matrimo – nial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis.” (Sassower v. Barone, 85 AD2d 81[1982]) Additionally, the Appellate Di- vision in Prichep v. Prichep, 52 AD3d 61 (2008) has stated, “(i)n light of the important public policy underlying DRL §237(a), an award of in – terim counsel fees to the non-monied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties.”7 14* Mother's application for interim attorney's fees is flawed by its failure to comply with the requirements of 22 NYCRR 202.16(k)(3) and (k)(7) which provides: (3) No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on ac -count 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. Mother's papers fail to annex her attorney's time records and, since the submission of these motions, Mother has discharged her attorney and is appear-ing pro se. Therefore, her request is denied without prejudice to renewal upon proper papers. 15* In summary, the pending motions are resolved as follows: It is hereby ORDERED, that Father's motion to compel arbitration is denied; and it is further ORDERED, that Mother's request for pendente lite child support and maintenance is denied with -out prejudice to renewal upon proper papers; and it is further ORDERED, that Mother's request for pendente lite attorney's fees is denied without prejudice to renewal upon proper papers; and it is further ORDERED, that the parties are to appear before this Court on April 16, 2012 at 3:00 pm prepared to enter into comprehensive discovery and appraisal orders, as necessary, which are to include the production of all Medicaid applications submitted by the parties for themselves and the subject children. The foregoing constitutes the decision and order of the Court. Counsel for Father is directed to serve a copy of this order with notice of entry on Mother within fourteen (14) days. 1. This Court appointed an attorney for the children on Septem- ber 19, 2011, and the parties entered into a stipulation resolving visitation disputed on September 23, 2011. 2. The February 25, 2010 agreement is not addressed in the in- stant motion practice and has no bearing on the Court's deter- mination. 3. Other translations submitted by the parties reference the par- ties' “intermediaries” as “arbitrators.” 4. The translation attached to the Mother's moving papers trans- lates “signature” as “will sign.” 5. It appears from Father's other submissions that $50,000 was an advance of child Support. 6. The facts as presented are, at best, ambiguous. Mother argues that, far from having received her maximum benefits under the Agreement, it is, in fact, unconscionable: Mother waived her claims to assets of which she may be unaware; Mother received $20,000, rather than $30,000 provided in the Agreement, which monies represented a refund of the monies she brought into the marriage; and, it appears, that $50,000 of the monies she received was an advance against child support. Insofar as participating in arbitration is concerned, the two subse- quent arbitrations dealt with discreet issues and the fact that the parties' representative executed a further arbitration agreement to deal with the security interest suggests that they did not believe that there was an arbitration agreement in place regarding all is- sues raised in the Agreement. 7. It appears that the parties failed to comply with any formali- ties regarding the validation of this marriage. While admitting to an inability to legally marry, Mother paradoxically alleges that Father refused to obtain a marriage license in order that she and the parties' children would be eligible for Medicaid. She alleges, however, that they enjoyed a lavish lifestyle. Mother indicates, in her statement of net worth, that she and the children are currently receiving Medicaid while, as mentioned above, listing monthly expenses of over $11,000, including, $600 per month for eat- ing out, $1,125 per month for clothing and $500 per month for babysitters and domestic help. Reprinted with permission from the April 9, 2012 edition of the NEW YORK LAW JOURNAL © 2011. ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or [email protected]. # 070- 04-12-26