Recent Blog Posts in 2006

Since there are only a few Judges in each County that hears divorce cases, it is legal suicide to play games with discovery in New York. If a lawyer or attorney in New York City has a bad reputation, thier effectiveness is comprimesed.

LARRY G. MARTINSON, PLAINTIFF-APPELLANT,

v.

MICHELLE R. MARTINSON, DEFENDANT-RESPONDENT.

September 29, 2006

PRESENT: SCUDDER, J.P., KEHOE, SMITH, PINE, AND HAYES, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from be and the same hereby is modified on the law by vacating the 48 th decretal paragraph and providing that plaintiff is directed to pay defendant $21,472 for her share of plaintiff's enhanced earning capacity, with interest at the rate of 9% per annum from February 4, 2005, and as modified the judgment is affirmed without costs, and the matter is remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the following Memorandum: On appeal from a judgment in an action for divorce and ancillary relief, plaintiff contends that Supreme Court erred in its distribution of certain marital assets, including the parties' tax refund, a tax relief check, and the money remaining in an account set up for the parties' children. It is well settled that the provision in Domestic Relations Law § 236(B)(5)(c) that marital property be "distributed equitably between the parties" does not require equal distribution (see Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034). "Moreover, the trial court is vested with broad discretion in making an equitable distribution of marital property and, absent an abuse of discretion, its determination will not be disturbed" (Bossard v. Bossard, 199 A.D.2d 971, 971). Here, the parties stipulated to the disposition of certain assets, and the record establishes that the court properly considered the factors set forth in Domestic Relations Law § 236(B)(5)(d), including defendant's waste of marital assets, in distributing the named assets. Plaintiff failed to establish that the court abused its discretion in distributing those assets.

We agree with plaintiff, however, that the court erred in awarding defendant 40% of the value of the marital portion of plaintiff's enhanced earning capacity arising from plaintiff's obtaining, during the marriage, a license to practice as a physician's assistant. In light of defendant's modest contribution to the attainment of plaintiff's license, we conclude that the court should have awarded defendant only 20% of the value of the marital portion of plaintiff's enhanced earning capacity (see Schiffmacher v. Schiffmacher, 21 AD3d 1386, 1387). Consequently, we modify the judgment by vacating the 48 th decretal paragraph and providing that plaintiff is directed to pay defendant $21,472 for her share of plaintiff's enhanced earning capacity, with interest at the rate of 9% per annum from February 4, 2005, and we remit the matter to Supreme Court to determine the duration and minimum amount to be paid per month on that amount.

All concur except Hayes, J., who is not participating, and Kehoe J., who dissents in part and votes to affirm in the following Memorandum: I respectfully dissent in part. In my view, Supreme Court did not abuse or improvidently exercise its discretion in awarding defendant a 40% share of the marital portion of the enhanced earning capacity attributable to plaintiff's attainment during the marriage of two educational degrees and licensing as a physician's assistant. The Domestic Relations Law mandates that the equitable distribution of marital assets be based on the circumstances of the case and directs the trial court to consider a number of statutory factors, including the income and property of each party at the time of marriage and at the time of commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including "services as a spouse, parent, wage earner and homemaker" (Domestic Relations Law § 236[B] [5][d]; see Holterman v. Holterman, 3 NY3d 1, 7-8). The enumeration of those factors bespeaks the Legislature's recognition of marriage as an economic partnership with a significant noneconomic component (see generally Price v. Price, 113 A.D.2d 299, 304-306, affd 69 N.Y.2d 8; Capasso v. Capasso, 119 A.D.2d 268, 274, citing O'Brien v. O'Brien, 66 N.Y.2d 576, 585). Those considerations "are particularly relevant when evaluating the parties' respective contributions to" one spouse's "attainment of a professional license," which "is marital property subject to equitable distribution" (Holterman, 3 NY3d at 8). The overriding "principle [is] that both parties in a matrimonial action are entitled to fundamental fairness in the allocation of marital assets, and that the economic and noneconomic contributions of each spouse are to be taken into account. Trial courts that examine the statutory factors are granted substantial discretion in determining the extent to which the distribution of marital property, including enhanced earnings attributable to a professional license, will be equitable" (id.). Moreover, as the majority notes, "absent an abuse of discretion, [the trial court's] determination will not be disturbed" (Bossard v. Bossard, 199 A.D.2d 971, 971; see Holterman, 3 NY3d at 8).

"Here, [the court] issued a careful, comprehensive decision addressing all relevant factors" (Holterman, 3 NY3d at 8), including the fact that the parties' 19-year marriage had produced five children, three of whom remained unemancipated; that defendant had given up her career as a licensed cosmetologist to stay at home with the children throughout the marriage, in keeping with the parties' Mormon religious beliefs; that the majority of plaintiff's schooling, a total of 91 credit hours leading to plaintiff's attainment of bachelor's and master's degrees as a physician's assistant, was completed during the marriage; and that defendant had waived her right to receive maintenance. In support of its determination, the court also might have cited the fact that plaintiff had joined the U.S. Army as an enlisted man 2 1/2 years after the marriage but by the time of commencement of the divorce action had attained the rank of Captain; that plaintiff's choice of a military career had necessitated 14 moves by the family in 19 years; that plaintiff's military career culminated in a six-month deployment to Iraq just prior to commencement of the divorce action; that plaintiff's education during the marriage was paid for by the Army, a form of intangible compensation that otherwise would constitute marital property; and that defendant, in addition to assuming a disproportionate share of the household and child rearing tasks, typed plaintiff's papers for college and graduate school. It also must be noted that, in awarding defendant only 40% of the marital portion (with a determined value of $107,360) of plaintiff's total enhanced earning capacity (with a stipulated value of $176,000), the court actually awarded defendant only about one quarter of the total enhanced earning capacity. In halving the award to defendant, the majority effectively awards her only a one-eighth interest in the total enhanced earning capacity of $176,000, despite the fact that both educational degrees and the physician's assistant license were earned during the marriage.

In my view, the determination of the court, much more so than the decision of the majority, accomplishes the "core purpose of the O'Brien rule: to assure the nontitled spouse an equitable share of the license to which that spouse's efforts contributed" (McSparron v. McSparron, 87 N.Y.2d 275, 282, rearg dismissed 88 N.Y.2d 916). I therefore conclude that the court properly awarded defendant 40% of the enhanced earning capacity achieved by plaintiff during the marriage (see Holterman, 3 NY3d at 7-9 [awarding nontitled spouse 35% of other spouse's enhanced earning capacity]; Lipsky v. Lipsky, 276 A.D.2d 753[50%]; Reczek v. Reczek, 239 A.D.2d 867, 868[35%], abrogated on other grounds by Corasanti v Corasanti, 296 A.D.2d 831; see also Krigsman v. Krigsman, 288 A.D.2d 189, 191[50%]; McNally v. McNally, 251 A.D.2d 302, 303[50%]; Vainchenker v. Vainchenker, 242 A.D.2d 620, 621 [50%] ).

The following case decided by a Judge in Brooklyn lays out the law.

Supreme Court, Kings County, New York.

Simon KUDROV, Plaintiff,

v.

Lyudmila KUDROV, Defendant.

Feb. 23, 2005.

SARAH L. KRAUSS, J.

The defendant, Lyudmila Kudrov, has moved by order to show cause for an order to enforce certain provisions of a postnuptial agreement, dated Decemebr 21, 1996. The plaintiff opposes the motion and argues that the agreement is unenforceable and void because it was not properly acknowledged. For the reasons that follow, the defendant's motion is denied and the agreement is deemed invalid and unenforceable.

Background

The parties were married on August 26, 1992. On December 21, 1996 the parties entered into a written agreement which provided for the equitable distribution of their marital property. On January 21, 1997 the plaintiff commenced an action for divorce which was uncontested and resulted in a Judgment of Divorce dated July 8, 1997. The agreement was incorporated, but did not merge into the Judgment of Divorce. [FN1] The defendant now moves, by order to show cause, to specifically enforce the provision of the agreement which stipulates that the parties shall be joint owners of two taxi cab corporations with the net profits to be divided equally between the parties. [FN2] The defendant claims that the plaintiff has failed to share any profits from the operation of the two taxi cab corporations and has prevented her from obtaining any information regarding the operation of the businesses. [FN3]

FN1. Although the Judgment of Divorce refers to the Agreement as a Stipulation of Settlement, because the Agreement preceded the matrimonial action, it is technically a marital agreement pursuant to DRL ? 236(B)(3).

FN2. Article IX, paragraph C of the agreement specifically states: "In consideration of the Wife's investment of her money towards the purchase of the ownership of five (5) medallions in two (2) corporations, namely Lou Lou Transit, Inc. (3 cabs) and Tomcat Transit, Inc. (2 cabs), the parties agree that the ownership of the said corporations shall be jointly owned by both of them and that the Husband shall continue to manage the said medallions and the taxis to which they are attached and shall pay all business expenses, including management fee (sic), relating to such taxis from any income generated by them. Any profits resulting from said medallions and taxis or the corporations to which those taxis belong shall be divided between the parties."

FN3. The order to show cause was originally argued before the Honorable Betsy Barros on January 20, 2005. On that date an order was entered directing the plaintiff to provide for the inspection and copying of all the books and records of the two subject taxi cab corporations within 30 days. A compliance conference was scheduled for March 30, 2005.

Although it appears that the parties have complied with all other aspects of the agreement to date, the plaintiff opposes the defendant's request for relief and seeks to deem the agreement unenforceable and invalid as it was not acknowledged or proven in a manner required to entitle a deed to be recorded. See, Domestic Relations Law (DRL) ? 236(B)(3). The agreement itself was subscribed by the parties in the State of Florida. The certificate of acknowledgment, however, reveals that the acknowledgment was made before a New York notary.

Legal Discussion

DRL ? 236(B)(3) provides that: "[a]n 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 the manner required to entitle a deed to be recorded."

In Matisoff v. Dobi, 90 N.Y.2d 127 (1997), the Court of Appeals reversed a decision of the Appellate Division, First Department and held that a postnuptial agreement which had been signed, but not acknowledged, was not specifically enforceable in a matrimonial action because it failed to comply with the terms of DRL ? 236(B)(3). In reaching its holding, the Court ultimately rejected the analysis of the Appellate Division which had concluded that, where various equitable factors are present, the failure to comply with the statutory requirement of acknowledgment should not constitute an absolute bar to enforcing a nuptial agreement. [FN4] The Court of Appeals, instead, specifically opted for a "bright-line rule" that would require acknowledgment in every case involving marital agreements, and noted that such a rule would be easy to apply and would place couples and their legal advisors on notice of the prerequisites to a valid nuptial agreement. Matisoff at 135.

FN4. In Matisoff, the Appellate Division had reversed a determination by the trial court which had ruled that the postnuptial agreement was unenforceable despite admissions by the parties, during their divorce trial 13 years later, that the signatures on the agreement were genuine. The Appellate Division opted for a more flexible approach given that there was no evidence of fraud, duress or misunderstanding and that the terms of the postnuptial agreement had been acknowledged and ratified in the daily activities and the property relations of the parties throughout the marriage. However, as already discussed, this flexible approach was rejected by the Court of Appeals for a "bright-line rule".

Since the agreement at issue is a marital agreement pursuant to DRL ? 236(B)(3), the agreement itself must be acknowledged in the manner required to entitle a deed to be recorded. [FN5] Thus, there must be an oral acknowledgment before an authorized officer, and a written certificate of acknowledgment must be attached to the agreement. See, Matisoff at 137; Filkins v. Filkins, 303 A.D.2d 934 (4th Dept., 2003); Real Property Law (RPL) ? ? 291, 298, 299, 306.

FN5. Moreover, the agreement itself provided that it should be construed under the laws of the State of New York.

It is undisputed that the acknowledgment in this case was made in the State of Florida before a New York notary public. Pursuant to RPL ? 299, acknowledgments of the conveyance of real property situated in New York state can be made in another state only by certain officers, which include either a notary qualified in the State of Florida, or a commissioner of deeds appointed pursuant to the laws of New York State to take acknowledgments outside of the state. No evidence has been presented to this court that the New York notary who received and certified the acknowledgment in this case was, at the time, either qualified as a notary public in the State of Florida, or qualified in New York State as a commissioner of deeds entitled to take out of state acknowledgments. Moreover, pursuant to Executive Law ? 135, a notary public qualified in New York State is only empowered to receive and certify acknowledgments within and throughout New York State.

Accordingly, because the marital agreement in question was never properly acknowledged, it is invalid and unenforceable. See, Matisoff, supra.

The defendant essentially makes two arguments in support of upholding and enforcing the marital agreement. The first, is that the agreement has been acknowledged and ratified by the parties throughout the eight years it has been in effect. While this is a very compelling argument, the Court of Appeals in Matisoff, as already discussed, has rejected the consideration of such equitable factors. Nothing other than strict compliance with the acknowledgment rules of DRL ? 236(B)(3) will uphold the validity of a marital agreement. [FN6]

FN6. Although the Matisoff decision precludes consideration of equitable factors in determining the validity of a marital agreement, such factors will nevertheless be relevant should this court need to determine the equitable distribution of the two taxi cab corporations at issue. See, Matisoff at 136.

The defendant further asserts that the agreement in question is a binding stipulation and is entitled to be enforced pursuant to Civil Practice Law and Rules (CPLR) ? 2104. CPLR ? 2104 states as follows:

An agreement between parties and their attorneys relating to any matter in action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.

While it is true that both the First and Second Departments have held that an agreement which settles a matrimonial action is exempt from the statutory formalities of DRL ? 236(B)(3) and will be upheld as valid and enforceable if it complies with CPLR ? 2104 [FN7], the agreement in question was effectuated prior to commencement of the action and not in settlement of an existing action. The agreement, therefore, does not qualify as a settlement agreement subject to CPLR ? 2104 and is, therefore, not exempt from the requirements of DRL ? 236(B)(3). [FN8]

FN7. Rubenfeld v. Rubenfeld, 279 A.D.2d 153 (1st Dept., 2001); Nordgren v. Nordgren, 264 A.D.2d 828 (2nd Dept., 1999).

FN8. Whether the validity of a stipulation of settlement in a matrimonial action is controlled by CPLR ? 2104 or DRL ? 236(B)(3) is a subject which has divided the Appellate Divisions. The Third and Fourth Departments, unlike the First and Second, have determined that any nuptial agreement, including one which settles a matrimonial action, is subject to the statutory formalities of DRL ? 236(B)(3). The Court of Appeals has not yet settled this issue.

In light of the foregoing, the defendant's motion to enforce the postnuptial agreement dated December 21, 1996 is denied and the agreement is deemed invalid and unenforceable.

This constitutes the decision and order of the court.

In the case of Taub v. Taub, the Court ruled in favor of the husband in denying the wifes application for exclusive occupance of the marital residence.

DECISION & ORDER

In an action for a divorce and ancillary relief, the wife appeals from an order of the Supreme Court, Kings County (Krauss, J.), dated August 29, 2005, which, in effect, denied that branch of her motion which was for exclusive use and occupancy of the marital residence and directed the husband to erect a wall in the marital residence to provide separate living accommodations for the parties.

ORDERED that the order is affirmed, with costs.

Courts are statutorily empowered to grant one spouse temporary exclusive use and occupancy of the marital residence during the pendency of divorce proceedings (see Domestic Relations Law § 234). Such an order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife (see Kenner v Kenner, 13 AD3d 52; Mitzner v Mitzner, 228 AD2d 483; Annexstein v Annexstein, 202 AD2d 1062; Fakiris v Fakiris, 177 AD2d 540; Goodson v Goodson, 135 AD2d 604; Purdy v Purdy, 117 AD2d 659; Wolfe v Wolfe, 111 AD2d 809).

Contrary to the wife's contention, she did not meet her burden of establishing that the removal of the husband from the marital residence was necessary to protect her safety. The wife's only allegations of actual violence were incredible, and the alleged threats made by the husband were [*2]uncorroborated.

As it is undisputed that the husband did not voluntarily vacate the marital residence, there was no basis to award the wife exclusive occupancy of the marital residence. Thus, directing the separation of the marital residence into two separate residences, with each spouse having access only to their respective portions, while novel, was within the court's discretion.

The wife's remaining contentions are without merit.
SCHMIDT, J.P., SANTUCCI, SKELOS and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

v.

Vincent WILLIAMS, appellant.

Sept. 12, 2006

ANITA R. FLORIO, J.P., GLORIA GOLDSTEIN, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ

In a custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (MacKenzie, J.), dated August 24, 2005, which, after a hearing, inter alia, granted the mother's petition to modify the custody provisions of the parties' judgment of divorce and awarded her sole custody of the subject children.

ORDERED that the order is affirmed, with costs.

A parent seeking a change in custody must make an initial evidentiary showing sufficient to warrant a hearing (see McNally v. McNally, 28 A.D.3d 526, 816 N.Y.S.2d 98; Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 770 N.Y.S.2d 101; Corigliano v. Corigliano, 297 A.D.2d 328, 329, 746 N.Y.S.2d 313; Teuschler v. Teuschler, 242 A.D.2d 289, 660 N.Y.S.2d 744). Contrary to the father's contention, the mother's allegations that he imposed excessive and inappropriate discipline on the subject children, including corporal punishment, was sufficient to warrant a hearing.

"A change of custody should be made only if the totality of the circumstances warrants a modification" (Corigliano v. Corigliano, supra at 329, 746 N.Y.S.2d 313; see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95-96, 447 N.Y.S.2d 893, 432 N.E.2d 765). On this record, we discern no basis to disturb the Family Court's determination, made after a hearing and in camera interviews with the subject children (see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659), that it was in their best interests to award custody to the mother (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, supra at 93-95, 447 N.Y.S.2d 893, 432 N.E.2d 765).

The father's remaining contentions are without merit.

How much child support is going to be paid, or who pays the credit card debt or the car lease, then you have unresolved issues and you need the advice of an experienced lawyer. My office is not a paralegal service. We provide guidance and advice in the divorce process. If you are looking for the cheapest price for a divorce in New York, move on. Look for a subway ad or in the New York Post. If you are in the need of competent counsel then you should contact my office in New York or Brooklyn.

I.
In January 1996, Shondel J. gave birth to a daughter in Guyana, where she then resided, and in a birth registration document named Mark D. as the father. Shondel and Mark had dated the previous spring in Guyana and had sexual intercourse.

Although Mark was in New York when the child was born, he provided financial support for the child and returned to Guyana later in the year to see her. In a sworn statement, notarized by the Guyana Consul-General in New York in January 1996, Mark declared that he was "convinced" that he was the child's father and accepted "all paternal responsibilities including child support." In 1998 he signed a Guyana registry, stating that he was her father and authorizing the change of her last name to his. Mark named the child the primary beneficiary on his life insurance policy, identifying her as his daughter. He also sent Shondel money monthly for the child's support from her birth until June 1999 and then less regularly through the summer of 2000.

In August 2000, Shondel commenced a Family Court Act article 5 proceeding alleging that Mark is the father and seeking orders of filiation and support. Initially, Mark did not contest paternity. On the contrary, in September 2000, when the child was 4½ years old, Mark commenced a Family Court Act article 6 proceeding, seeking visitation. In his petition, he stated that he was the child's father, and that he loved her and wished to "spend quality time with her on a regularly scheduled basis."

In October 2000, however, when appearing before a Family Court hearing examiner to answer Shondel's petition, Mark requested DNA testing. The hearing examiner ordered genetic marker tests, which revealed that Mark is not the child's biological father. The hearing examiner then dismissed Shondel's paternity petition, and Mark abandoned his petition for visitation, having severed his relationship with the child. Shondel objected to the hearing examiner's order, expressing doubts about the laboratory tests and stating that she would be able to show that Mark had always recognized the child as his. Realizing that the hearing examiner had exceeded her authority in dismissing Shondel's petition, Family Court sustained her objection and appointed a law guardian for the child.

In October 2001, the Law Guardian reported that Mark had acted as the father of the child, who in turn considered him her father. Family Court set the matter down for a trial on equitable estoppel and ordered another set of tests. A blood genetic marker test confirmed that Mark is not the child's biological father. [*3]

At the estoppel trial, Family Court heard widely diverging testimony from Shondel and Mark. According to Shondel's testimony, Mark spent time with her and the child when they traveled to the United States in 1996 and 1997, seeing them "every day" for about six weeks in the summer of 1997 in New York; continued to visit the child and take her out after his relationship with Shondel soured in 1998; bought the child toys, clothes and other gifts; took the child to meet his parents; told his family that she was his daughter; regularly spoke with the child by telephone; referred to himself as "daddy" when talking with the child; and visited the child "almost every other day" in August 1999 and "almost every other day" between the time Shondel and the child moved to New York in January 2000 and the commencement of this litigation.

Mark denied all of this, asserting that he had seen the child only four times since her birth; that he had not acknowledged the child as his; that he had not introduced the child to his family or friends as his child; that he had not sent the child birthday or Christmas gifts; and that he had never visited her. Mark testified that he twice asked Shondel to submit to a blood test to determine whether he was the father of her child. Shondel insisted that he did not.

Family Court believed Shondel "entirely" and found Mark's testimony incredible. It ruled that Mark "held himself out as [the] child's father, and behaved in every way as if he was the father, albeit a father who didn't reside for a good part of the child's life, in the same country." These affirmed findings of Family Court have support in the record and are binding on this Court.

Family Court entered an order of filiation and awarded child support retroactive to the date Shondel commenced the Family Court proceeding. The Appellate Division affirmed, concluding that "Family Court properly determined that it was in the best interests of the subject child to equitably estop [Mark] from denying paternity" (6 AD3d 437 [2004]).[FN1] We agree, based on our precedents, the affirmed findings of fact and the legislative recognition of paternity by estoppel.

II.
The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of [*4]position (see generally Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]).

New York courts have long applied the doctrine of estoppel in paternity and support proceedings. Our reason has been and continues to be the best interests of the child (Jean Maby H. v Joseph H., 246 AD2d 282, 285 [2d Dept 1998]; see generally Matter of L. Pamela P. v Frank S., 59 NY2d 1, 5 [1983]).

Although it originated in case law, paternity by estoppel is now secured by statute in New York (see Family Ct Act § 418 [a]; § 532 [a]). For that reason, and contrary to Mark's assertions, it is not for us to decide whether the doctrine has a rightful place in New York law. Clearly it does, in the absence of legislative repeal or a determination of unconstitutionality. Mark argues for the first time in this appeal that sections 418 (a) and 532 (a) are unconstitutional and deprive him of due process. As this claim was not raised in the courts below, we do not entertain it.

Equitable estoppel is gender neutral. In Matter of Sharon GG. v Duane HH. (63 NY2d 859 [1984], affg 95 AD2d 466 [3d Dept 1983]), we affirmed an order of the Appellate Division dismissing a paternity petition in which a mother sought to compel her husband to submit to a blood test as a means of challenging his paternity. We agreed with the Appellate Division that the mother should be estopped. As that Court pointed out, the mother expressed no question about her child's paternity until some 2½ years after the child's birth. She had held the child out as her husband's, accepted his support for the child while she and her husband lived together and after they separated, and permitted her husband and child to form strong ties together.

Estoppel may also preclude a man who claims to be a child's biological father from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man. The rationale is that the child would be harmed by a determination that someone else is the biological father. For example, in Purificati v Paricos (154 AD2d 360 [2d Dept 1989]), a boy's biological father who did not seek to establish his paternity until more than three years after the child's birth, and who acquiesced as a relationship flourished between the boy and his mother's former husband, was estopped from claiming paternity. The courts "impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship" (Matter of Baby Boy C., 84 NY2d 91, 102 n [1994]).

Finally, the Appellate Division has repeatedly concluded that a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the [*5]two, may be estopped from denying paternity.[FN2] Where a child justifiably relies on the representations of a man that he is her father with the result that she will be harmed by the man's denial of paternity, the man may be estopped from asserting that denial.[FN3]

III.
Mark represented that he was the father of the child, and she justifiably relied on this representation, changing her position by forming a bond with him, to her ultimate detriment. He is therefore estopped from denying paternity.

Mark expressly represented that he was the father of Shondel's child in the notarized sworn statement and in the Guyana registry in which he gave the child his name, as well as in the visitation petition filed with Family Court. Further, Mark held himself out as the child's father, and behaved in every way as if he was the father. Mark and the child had a close relationship, in which he referred to himself as her "daddy," and which involved regular telephone conversations, frequent visits when she and Mark were in the same city, and contact with his parents. Moreover, Mark named the child as the primary beneficiary on his life insurance policy and sent money monthly for the child's support until June 1999 and then less regularly through the summer of 2000.

The record also establishes that the child justifiably relied on Mark's representations, accepting and treating him as her father. The Law Guardian's October 2001 oral report to Family Court on her interview with the child (conducted when she was 5½ years old) concluded that she

"considers Mark [D.] to be her father. She enjoys spending time with him, she knew his name, she described what he looks like, different things about his appearance, she talked about some of the things they did together, she enjoyed the visits a lot, he brought her presents in the past, he took her out without the mother sometimes, [*6]there's a picture album with pictures of [Mark] in it and she wanted me to express that she misses him and she wants to know when he's going to come back to see her."
In the best interests of the child, Family Court properly applied estoppel, to impose support obligations on Mark, after he left the child with the detrimental effects of a relationship in which she was misled into believing that he was her father. A mother who had perfect foresight and knew that her child's relationship with a father figure would be severed when the child was 4½ might well choose never to inform him of her child's birth.

IV.
Mark attacks the statutory basis for the application of paternity by estoppel. In 1990, the Legislature amended Family Court Act § 418 (a), which governs the procedures related to scientific testing of biological paternity in support proceedings, so as to read, in pertinent part:

"The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests . . . to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman." (Family Ct Act § 418 [a] [emphasis supplied]; see L 1990, ch 818, § 12.)
Arguing that the statute is self-contradictory, Mark asserts that the law mandates scientific testing of biological paternity in support proceedings and then in the next sentence makes such tests discretionary. We view the statute differently.

By providing a limited "best interests of the child" exception to mandatory biological tests of disputed paternity, the statute requires Family Court to justify its refusal to order biological tests when paternity is in issue. Before the amendment, Family Court was authorized, but not required, to order biological tests, and the court did not have to justify its refusal to do so. Now, in a support proceeding in which paternity is disputed, Family Court must explain why it denies a motion for biological paternity testing. The court may deny testing based on "res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman," if denial is in the best interests of the child.

It is true that a child in a support proceeding has an interest in finding out the identity of her biological father. But in many instances a child also has an interest--no less powerful--in maintaining her relationship with the man who led her to believe that he is her [*7]father. The 1990 amendment to Family Court Act § 418 (a) appropriately balances these interests in accordance with the primary purpose of the Family Court Act--to protect and promote the best interests of children.

The procedure contemplated by section 418 (a) is that Family Court should consider paternity by estoppel before it decides whether to test for biological paternity. Here, the process was inverted early in the proceeding. Instead of referring the matter to a Family Court judge, the hearing examiner ordered genetic marker tests of paternity when the parties appeared in October 2000. As a result, the child's biological paternity had been addressed before Family Court conducted its trial on the issue of estoppel. Nevertheless, even though the tests had been conducted, Family Court was authorized to decide the estoppel issue.

V.
In allowing a court to declare paternity irrespective of biological fatherhood, the Legislature made a deliberate policy choice that speaks directly to the case before us. The potential damage to a child's psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. Situations vary, and the question whether extinguishing the relationship and its attendant obligations will disserve the child is one for Family Court based on the facts in each case. Here, Family Court found it to be in the best interests of the child that Mark be declared her father and the Appellate Division properly affirmed.

Asserting that the equities are with Mark, our dissenting colleagues argue that we do not acknowledge the fraud or misrepresentation exception to the doctrine of equitable estoppel. This argument is misplaced for three reasons. To begin with, the child is the party in whose favor estoppel is being applied and there can be no claim here that she was guilty of fraud or misrepresentation. Secondly, to the extent that it matters, we note that there is no evidence of fraud or willful misrepresentation even on Shondel's part. It is not likely that she would have initiated paternity proceedings, with the predictable prospect of biological testing, if she expected tests to rule him out as the father. There is every reason to believe that she thought Mark was the biological father and that the tests would confirm her belief. Finally, the issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.

We appreciate the dissenters' concern over applying estoppel to a case in which, as between Mark and Shondel, it was she who misrepresented Mark to be the father (even though she may have earnestly believed he was). The dissenters' position, however, appears not to recognize that fatherhood by estoppel does not contemplate a contest between two adults to [*8]see who is the more innocent. The child is entirely innocent and by statute the party whose interests are paramount.

To the child, Mark represented himself as her father. The Legislature did not create an exception for men who take on the role of fatherhood based on the mother's misrepresentation. That would eviscerate the statute and, with it, the child's best interests. Under the enactment, the mother's motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served.

Here, Family Court found, and the Appellate Division affirmed, that Mark represented himself to be the father and that the child's best interests would be served by a declaration of fatherhood. Under our decisional law, and contrary to the dissenters' suggestion, equitable estoppel does not require that Mark, to be estopped, necessarily knew that his representation was false. A party who, like Mark, does not realize that his representation was factually inaccurate may yet be estopped from denying that representation when someone else--here the child--justifiably relied on it to her detriment (see Romano v Metropolitan Life Ins. Co., 271 NY 288, 293-294 [1936]; Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443, 448 [1958]).

The dissenters cite Simcuski v Saeli (44 NY2d 442 [1978]), which holds that a defendant may be estopped to plead the statute of limitations after having wrongfully induced the plaintiff to refrain from filing a timely suit. Simcuski prevents defendants from profiting from their misconduct. It does not bear on estoppel as between a man and the child with whom he has formed a father-daughter relationship.

Our dissenting colleagues point out that Mark has renounced fatherhood and now has no relationship with the child. This state of affairs, however, does not preclude the application of estoppel. If it did, a man could defeat the statute simply by severing all ties with the child.

Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings--to serve the best interests of the child.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

 

G.B. Smith, J. (dissenting). The issue in this case is whether an individual nonspouse who was falsely told he was the biological father of a child and who DNA tests show could not be the biological father can be equitably estopped from denying paternity. A man or woman is and should be responsible for the financial support of his or her own offspring. In some instances, this responsibility may be placed upon a nonbiological parent. The facts in this case do not justify such a result. Because the "best interests of the child" require more than financial support, and equitable estoppel should be applicable only to someone who engages in false conduct, I dissent.

In 1995, while on a trip to Georgetown, Guyana, respondent Mark D. met and engaged in sexual intercourse with the petitioner, Shondel J. Following his return to the United States, Shondel J. told respondent she was pregnant and he began financially supporting petitioner. In 1996, respondent signed documents submitted to the Guyanese Consul that declared him to be the father of the child. He claims that he did this in order for petitioner to travel to the United States and submit to a paternity test. Between 1996 and 2000, when petitioner moved to New York, Mark D. saw the child multiple times during two visits to Guyana and a visit to Chicago. In 1997, he named the child as a beneficiary on his life insurance policy.

In 2000, Shondel J. commenced a Family Court proceeding in New York to declare Mark D. the child's father and to obtain an order of support. Family Court ordered DNA tests at Mark D.'s request and the DNA saliva swab test excluded paternity. In 2001, Family Court dismissed Shondel J.'s petition and she filed objections to the order of dismissal, alleging that the DNA test was erroneous. In November 2001, the results of a new blood test showed respondent was not the biological father. On August 8, 2002, in Family Court, Kings County, respondent was declared the child's father on the verified petition originally filed by petitioner. The court stated:

"The essence of the paternity trial was really one of equitable estoppel, should [Mark D.] be estopped from denying paternity. . . . I do find the Petitioner to have been entirely credible, and with all due respect, except in one regard, [Mark D.] entirely incredible.
"I do believe that he had doubts, however, he didn't act on them in the appropriate fashion, and as a result he held himself out as this child's father, and behaved in every way as if he was the father, albeit a father who didn't reside for a good part of the child's life, in the same country.
"However, it's clear to me that these families were involved with each other, involved with this child, that his parents and probably other friends and relatives and church members were [*9]aware of this relationship, were aware of this child . . . .
"I would assume that for the best--and hope that for the best interests of the child, that he could pick up where he left off, and accept this child wholeheartedly into his life, because the child certainly wants that, and really, what's paramount here is what the child needs."
On April 5, 2004, the Appellate Division, Second Department affirmed the Family Court's order of filiation. On May 9, 2005, the Second Department dismissed respondent's appeal from a Family Court order of retroactive child support, and affirmed an order of support against him.

The question here is not, as the majority suggests, whether equitable estoppel "has a rightful place in New York law" (majority op at 326) or in paternity proceedings. The statute makes clear that it does. The question is whether the elements of estoppel are present in this case. Equitable estoppel is a "defensive doctrine preventing one party from taking unfair advantage of another when, through false language or conduct, the person to be estopped had induced another person to act in a certain way, with the result that the other person has been injured in some way" (Black's Law Dictionary 571 [7th ed 1999]; see also Simcuski v Saeli, 44 NY2d 442, 449 [1978] [stating defendant may be equitably estopped "where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action" and plaintiff demonstrates reasonable reliance on defendant's misrepresentations]). Once a party makes a prima facie showing of facts sufficient to support equitable estoppel in the paternity context, the opponent of equitable estoppel must demonstrate why estoppel should not be applied in the best interests of the child (see Matter of Sharon GG. v Duane HH., 95 AD2d 466 [3d Dept 1983], affd 63 NY2d 859 [1984]).

According to Family Court Act § 532 (a), which is substantially similar in language to Family Court Act § 418 (a):

"The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court's own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res [*10]judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act" (emphasis added).[FN1]
The majority posits that once Shondel J. claimed Mark D. was the father and made a showing (visits, support, sworn statements), it was respondent's burden to show equitable estoppel should not be applied since it would not be in the best interests of the child. The facts are not sufficient to support equitable estoppel. While Mark D. financially supported the child and made time to visit her, he has not (in the language of Black's Law Dictionary) "tak[e]n unfair advantage" or been guilty of "false language or conduct"; he has not (in the language of our decision in Simcuski) committed any "fraud, misrepresentations or deception." Thus an essential element of equitable estoppel does not exist.

The record is clear that Shondel J. misrepresented the paternity of the child for years and Mark D. relied on this information in good faith. There is no evidence that Mark D. gained any advantage from holding himself out as the child's father. Thus the majority's decision applies estoppel against a completely innocent litigant who gained no benefit from the conduct on which the estoppel is based--a holding without precedent, in the research undertaken here, in this Court's decisions. Mark D. is being required to support this child through payments of $12,858 in arrearage (as of October 2003) and $78 per week, in lieu of providing that support to his own children and his wife.

Moreover, this is a poor case for abandoning the traditional elements of estoppel. The balance of equities is in Mark D.'s favor. Contrary to the majority's view (majority op at 330), [*11]there is strong evidence of "fraud or willful misrepresentation" by Shondel J. She not only told Mark D. that the child was his, she swore in Family Court that she had sexual relations with no other man during the relevant time period--testimony proven by DNA tests to be false. Perhaps more important, this is not a case where a child lived for years with, and was brought up by, a man she had always thought was her father (cf. Matter of Diana E. v Angel M., 20 AD3d 370 [2005]). At the time of the paternity proceeding, the child had lived most of her life in a different country from Mark D., and their relationship was primarily on the telephone. This is a case in which this Court should remember "the rightful reluctance of courts in a society valuing freedom of association to impose a personal relationship upon an unwilling party," a consideration that applies with special force to "the power of the State to force a parent-child relationship" (Matter of Baby Boy C., 84 NY2d 91, 101, 102 [1994]).

The majority's ruling allows disestablishment of paternity if a presumed father acts promptly but does not allow for an exception for those who have acted in reliance on a misrepresentation or a fraud. The balance of equities should rarely favor continuing such misrepresentation or fraud. To hold as the majority does would reward a presumed father who takes no role in a child's life until a DNA test makes it official or a mother who obtains paternal obligations through fraud. As the Massachusetts Supreme Judicial Court wrote in A.R. v C.R.:

"We would proceed with caution, as other courts have, in imposing a duty of support on a person who has not adopted a child, is not the child's natural parent, but has undertaken voluntarily to support the child and to act as a parent. In most instances, such conduct should be encouraged as a matter of public policy. The obligation to support a child primarily rests with the natural parents, and one who undertakes that task without any duty to do so generally should not be punished if he or she should abandon it. On the other hand, a husband who for years acts as a father to a child born to the wife, supports that child, and holds himself out as the father to the child and to the world, may be obliged to continue to support the child when he, for the first time, renounces his apparent paternity in an attempt to avoid court-imposed support obligations. It may be relevant, in deciding whether reliance was detrimental, to know whether there once was an opportunity to pursue the natural father that is now lost" (411 Mass 570, 575, 583 NE2d 840, 843-844 [1992] [citations omitted and emphasis added]).
With this decision, this Court supports a public policy that says a man should [*12]never take on a parental role unless he wants to be unconditionally responsible for the child's financial support.

Finally, it is not in the best interests of the child in this matter that the order of filiation and order of support be affirmed. The Law Guardian concedes that Mark D.'s contributions to this child's life will only be financial. He has had no contact with the child since March 2000. Unlike Matter of Sharon GG., where an estranged husband fought to keep his parental rights, in this matter we have a man fighting to divorce his financial interests from petitioner and her child. While it was in the best interests of the child in Sharon GG. to maintain a relationship with an estranged husband who had filled the role of father in every way, it should not be said here that it is in the best interests of a child to have an order of filiation declare respondent to be her father, a man, who in addition to having no biological tie, has no interest in continuing a relationship with her or her mother.[FN2

Accordingly, I dissent.

Chief Judge Kaye and Judges Ciparick, Graffeo and Read concur with Judge Rosenblatt; Judge G.B. Smith dissents in a separate opinion in which Judge R.S. Smith concurs.

Order affirmed, without costs.

Footnotes

Footnote 1: This Appellate Division order is brought up for review here by Mark's appeal of a later Appellate Division order dismissing his objections to the child support order (18 AD3d 551 [2005]).

Footnote 2: Mancinelli v Mancinelli, 203 AD2d 634 (3d Dept 1994); Matter of Commissioner of Social Servs. of Tompkins County v Gregory B., 211 AD2d 956 (3d Dept 1995); Brian B. v Dionne B., 267 AD2d 188 (2d Dept 1999); Matter of Jennifer W. v Steven X., 268 AD2d 800 (3d Dept 2000); Ocasio v Ocasio, 276 AD2d 680 (2d Dept 2000); Matter of Sarah S. v James T., 299 AD2d 785 (3d Dept 2002); Matter of Diana E. v Angel M., 20 AD3d 370 (1st Dept 2005).

Footnote 3: As one court put it, "[t]he law is not so insensitive as to countenance the breach of an obligation in so vital and deep a relation, undertaken, partially fulfilled, and suddenly sundered." (Clevenger v Clevenger, 189 Cal App 2d 658, 674, 11 Cal Rptr 707, 716 [Ct App 1961]; accord Pietros v Pietros, 638 A2d 545, 548 [RI 1994].)

Footnote 1: It is arguable that because DNA and other tests were ordered prior to any decision on equitable estoppel, the said doctrine should not apply here at all.

Footnote 2: Respondent argues that his constitutional rights are being violated since he is being deprived of his property in violation of the due process clauses of the federal and state constitutions. We do not address this argument because of the view taken with respect to equitable estoppel.

Supreme Court, Appellate Division, Second Department, New York.

Lynda G. KESSLER, respondent,

v.

John A. KESSLER, appellant.

July 11, 2006

Banks Shapiro Gettinger & Waldinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro of counsel), for appellant.

Kramer Kozek, LLP, White Plains, N.Y. (Barry Abbott of counsel), for respondent.

HOWARD MILLER, J.P., DAVID S. RITTER, GLORIA GOLDSTEIN, and MARK C. DILLON, JJ.

RITTER, J.

On June 4, 1996, four days before their marriage, the parties executed a prenuptial agreement making limited provision for the wife during the marriage and leaving her with little or nothing should the parties divorce. In March 2002 the wife commenced this action, inter alia, for a divorce and ancillary relief. The wife sought, among other things, rescission or reformation of the prenuptial agreement. Further, she alleged, the agreement was breached by the husband. The husband sought, inter alia, a determination that the prenuptial agreement was valid and enforceable, and entry of a judgment as to economic issues in accordance with the same. The parties agreed that the Supreme Court should determine the enforceability of the prenuptial agreement first. Thus, in October 2003, after the issue of custody of the parties' two children was settled on the eve of trial, the Supreme Court held a hearing concerning the validity and enforceability of the prenuptial agreement. The court also considered whether the attorney's fee provision of the agreement should be held unenforceable as against public policy. The Supreme Court rejected the wife's arguments that the agreement was void because she entered it under duress or that it was unconscionable as a whole. Further, the court found that the wife failed to prove that the husband breached the agreement by failing to pay his share of the joint household account. However, the court held that the portion of the agreement waiving the right to seek an award of an attorney's fee was unconscionable and unenforceable in light of the strong public policy embodied in Domestic Relations Law § 237(a). Because the wife has not appealed, the only issue presented is the enforceability of the waiver of her right to seek an award of an attorney's fee. We affirm the Supreme Court's determination that the wife's waiver of her right to seek an award of an attorney's fee is unenforceable.

Paragraph 2 of the parties' prenuptial agreement defined the separate property of each party. Schedules appended to the agreement list each parties' assets. The wife's assets were valued at $135,596. The husband's assets were valued at almost $4,000,000, and consisted of bank and brokerage accounts, real property (including the marital home), and stock in his closely-held company, Indoor Courts of America (hereinafter ICA). The values assigned must be accepted as reported because each party waived the right to any further disclosure concerning the other's assets. Separate property was expansively defined to include all proceeds from the sale, exchange, or other disposition of separate property; any replacement property acquired from the proceeds of the same; and all property purchased during the marriage with one party's sole and separate funds and owned either by that party alone or by that party and another party who is not a spouse.

Paragraph 5 of the agreement established what was to occur in the event the marriage was terminated other than by death (i.e., by divorce). Under paragraph 5, each party retained his or her separate property as defined in Paragraph 2 in the same manner and to the same extent as if the marriage had not taken place. Only property accumulated during the course of the marriage, excluding the separate property as defined, was available for division between the parties. If there were no children, the husband was entitled to immediate exclusive possession of the marital home. If, as is the case, children were born of the marriage and were still minors at the time of the divorce, the agreement provided that the matter of occupancy of the marital home was to be determined by the court. Paragraph 5 also contained the language at issue on this appeal: the blanket declaration that "each party shall have no right or claim against the other for support, alimony, attorney fees or costs."

In the event of death, Paragraph 4 provided that each party was entitled to dispose of his or her separate property by will. Should the husband predecease the wife, he agreed to bequeath her the sum of $100,000 in lieu of other bequests. During the course of the marriage, Paragraph 6 provided for a joint household account into which each party was to make regular and equal payments in an unspecified amount. The parties agreed to use this account to pay, inter alia, "normal maintenance, repairs and upkeep" on the marital home.

Preliminarily, we note, it is not disputed that the prenuptial agreement does not address the issue of child custody or child support for the parties' two minor children. Indeed, at the beginning of the hearing, the parties expressly stipulated that the word "support" as used in Paragraph 5, was not intended and should not to be interpreted to mean child support. Consequently, an award of an attorney's fee relating to child custody and child support issues is not controlled by the prenuptial agreement, but rather by Domestic Relations Law § 237 (see Alvares-Correa v. Alvares-Correa, 285 A.D.2d 123). The waiver of the right to seek an award of an attorney's fee contained in Paragraph 5 of the agreement is limited to the subject matter addressed by that paragraph, namely, issues of equitable distribution. The significance and potential complexity of the issues remaining concerning the same is made manifest by the record. At the hearing, counsel for the wife expressly noted that, regardless of whether or not the prenuptial agreement was upheld, there were issues concerning "what property is in the agreement and what property is not." Further, he noted, there was property acquired since the agreement, and "there's money that goes in and there's money that goes out." We note that the parties' joint tax return for 2001, which, in the main, concerns the husband's assets, spans 78 pages of the record. In sum, the enforcement of the waiver of an attorney's fee contained in Paragraph 5 could have a significant impact on the litigation.

The enforceability of a provision of a prenuptial agreement waiving the right to seek an award of an attorney's fee presents a clash of two competing public policies-that in favor of resolving marital issues by agreement and that in favor of assuring that matrimonial matters are determined by parties operating on a level playing field.

In general, New York has a "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Matter of Greiff, 92 N.Y.2d 341, 344; see Bloomfield v. Bloomfield, 97 N.Y.2d 188). However, this right is not and has never been without limitation. For example, parties may not enter into a contract in violation of the Federal or State constitution, a statute, an ordinance, or a regulation, and contracts may be set aside or held void as unconscionable or in violation of public policy (see e.g. Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392; Sternaman v. Metropolitan Life Ins. Co., 170 N.Y. 13; Ross v. Clyde Beatty-Cole Bros. Circus, 26 AD3d 321; Christ Gatzonis Elec. Contr. v. New York City School Constr. Auth., 297 A.D.2d 272).

The right to enter into a contractual arrangement as to matrimonial matters is expressly authorized by Domestic Relations Law § 236(B)(3), which provides: "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 the manner required to entitle a deed to be recorded." This provision "authorizes spouses or prospective spouses to contract out of the elaborate statutory system and provide for matters such as inheritance, distribution or division of property, spousal support, and child custody and care in the event that the marriage ends" (Matisoff v. Dobi, 90 N.Y.2d 127, 132; see Christian v. Christian, 42 N.Y.2d 63; Matter of Davis, 20 N.Y.2d 70; Paruch v. Paruch, 140 A.D.2d 418, 420). However, the State is deeply concerned with marriage and takes a supervisory role in matrimonial proceedings. In a related context, the Court of Appeals stated, "courts have thrown their cloak of protection about separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity" (Christian v. Christian, supra at 72). Indeed, in numerous contexts, agreements addressing matrimonial issues have been subjected to limitations and scrutiny beyond that afforded contracts in general. For example, an agreement concerning the amount and duration of spousal maintenance must be fair and reasonable at the time it is made, and not unconscionable at the time of entry of final judgment in the divorce action (see Domestic Relations Law § 236[B][3]; Deckoff v. Deckoff, 284 A.D.2d 426). Further, no spouse may relieve the other of the requirement of support to the extent that the spouse may become a public charge (see Bloomfield v. Bloomfield, supra ). An agreement as to child support must set forth the amount of child support that would be owed under the relevant guidelines and, if the amount agreed to deviates from the same, an explanation why (see Domestic Relations Law § 240[1-b][h] ). Moreover, even if the agreement complies with the statutory requirements, the courts "retain discretion with respect to child support" (Domestic Relations Law § 240[1-b][h]; see Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5; Pecora v. Cerillo, 207 A.D.2d 215, 217). Similarly, a prenuptial agreement as to child custody is not binding on the court (see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89; Fanelli v. Fanelli, 215 A.D.2d 718). Nor is an agreement concerning the physical location of a child subject to a joint or shared custody arrangement (see Tropea v. Tropea, 87 N.Y.2d 727). In short, the statutory scheme may trump an agreement if there is an inconsistency.

The Domestic Relations Law does not expressly address the right to enter into an agreement concerning an attorney's fee in a matrimonial action. However, Domestic Relations Law § 237(a) authorizes the court to "direct either spouse ... to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties" (see DeCabrera v. Carrera-Rosette, 70 N.Y.2d 879). This represents a statutory exception to the general rule that an attorney's fee is an incident of litigation to be borne by the respective parties (see Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5). Further, it is more than a mere permissive legislative grant of authority to award an attorney's fee.

"[Domestic Relations Law § 237], which has deep statutory roots, is designed to redress the economic disparity between the monied spouse and the non-monied spouse. Recognizing that the financial strength of matrimonial litigants is often unequal-working most typically against the wife-the Legislature invested Trial Judges with the discretion to make the more affluent spouse pay for legal expenses of the needier one. The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet."

(O'Shea v. O'Shea, 93 N.Y.2d 187, 190). Thus, Domestic Relations Law § 237 embodies a public policy determination by the Legislature that matrimonial matters are best resolved by parties operating on a level playing field (cf. DelDuca v. DelDuca, 304 A.D.2d 610).

However, not every agreement waiving the right to seek an award of an attorney's fee should be set aside. Rather, careful and individualized scrutiny is called for. The determination as to whether or not a provision waiving the right to seek an award of an attorney's fee is enforceable must be made on a case-by-case basis after weighing the competing public policy interests in light of all relevant facts and circumstances both at the time the agreement was entered and at the time it is to be enforced. If, upon such an inquiry, the court determines that enforcement of the provision would preclude the non-monied spouse from carrying on or defending a matrimonial action or proceeding as justice requires, the provision may be held unenforceable. Also relevant to such a determination is the conduct of the parties over the course of the matrimonial action. Such a determination is frequently best made at the conclusion of the action. However, because an attorney's fee is authorized when needed to carry on or defend an action, it may be necessary to make such a determination at an earlier point in the litigation. Here, although the Supreme Court contemplated the need for an interim award of an attorney's fee, apparently, an award was not made, leaving the issue to be determined at trial. Thus, the issue of the amount, if any, of such an award is not before this court on appeal. However, to the extent that such an award would otherwise be subject to the waiver contained in the prenuptial agreement, the Supreme Court, after careful and individualized scrutiny of the need for the same, may award the wife an attorney's fee as justice requires to enable her to carry on or defend issues of equitable distribution.

There is a great disparity between the relative financial positions of the parties in this action both at the time the prenuptial agreement was executed and at the time this action was commenced. The net value of the wife's separate property as set forth in the schedule appended to the prenuptial agreement was $135,596, while the net value of the husband's separate property was almost $4,000,000. Further, as also noted, the husband's wealth was, in the main, held in financial accounts, real property, and stock. This gives particular significance to the provision of the prenuptial agreement which includes among separate property all proceeds from the sale, exchange, or other disposition of separate property, and any replacement property acquired from the proceeds of the same. Indeed, such a provision, in conjunction with the provision precluding the award of spousal maintenance, regardless of the length of the marriage, meant that the prenuptial agreement provided the wife with little more than a limited right to occupy the marital home (which remained the husband's separate property) during the course of the marriage. Further, although less developed on the record, the disparity between the parties' relative financial positions has increased. The wife's 2002 statement of net worth shows total assets of $160,034 and a net worth of $135,234; essentially the same as when she entered the marriage. The husband's 2002 statement of net worth shows his total assets have grown to $5,626,224.15. Further, although the husband claims a negative net worth of $1,376,138.53, this figure appears open to challenge. For example, $3,700,000 of claimed debt is for contingent liabilities on the husband's personal guarantees of the corporate debt of his company, ICA. In his 2002 net worth statement, the husband values ICA at $416,650. However, in the list of property appended to the prenuptial agreement, the husband valued his stock in ICA at the sum of over $2,000,000. Further, in his 2002 net worth statement, the husband appears to significantly undervalue the marital home at $700,000. The home, which is very large and sits on four acres of property in Westchester County, was purchased in 1991 (more than 10 years earlier) for $420,000, and has since been improved with, inter alia, a pool and a tennis court. In short, there remains a great disparity between the relative financial wealth of the parties.

Despite this great disparity, the prenuptial agreement reflects no consideration given to the specific facts and circumstances of the parties as they relate to an award of an attorney's fee. Rather, although the wife came into the marriage with minimal assets compared to the husband, and the prenuptial agreement helped assure that this imbalance remained, the agreement provides for a blanket waiver of the right to seek an award of an attorney's fee (among other things), regardless of the length of the marriage or what occurred therein. Thus, the agreement does not provide for any consideration to be given at the time of the matrimonial action to the various issues relevant to an award of an attorney's fee, including, inter alia, the quantity and complexity of the issues to be litigated, and the relative means of the parties to do so. Indeed, here, by the time of the hearing, both parties had already incurred substantial attorney's fees. The husband testified that he had paid the sum of $75,000 in attorney's fees and owed the sum of approximately $75,000 more. The wife testified that she incurred the sum of approximately $165,000 in attorney and related expert fees. Moreover, although it cannot be determined on the record presented how much of this amount was incurred on matters related to child support and child custody, which, as discussed, is not controlled by the prenuptial agreement, and/or how much was incurred by the wife pursuant to her unsuccessful effort to rescind or reform the prenuptial agreement, which is not compensable pursuant to Domestic Relations Law § 237 (see Schapiro v. Schapiro, 204 A.D.2d 87, 88; Lamborn v. Lamborn, 56 A.D.2d 623; see also Anonymous v. Anonymous, 258 A.D.2d 547), the amounts alone are telling and suggest that, in the absence of at least a determination as to whether an award of an attorney's fee is warranted pursuant to Domestic Relations Law § 237 as they concern matters arising under Paragraph 5 of the agreement, the matrimonial scales will be skewed in favor of the husband's heavier wallet. The wealthier spouse should not be permitted, by the same agreement, to both opt out of the statutory scheme concerning an award of an attorney's fee and prevent an effective assessment of how important an award of an attorney's fee may be. Moreover, whether or not either party here has improperly prolonged the litigation, or created needless litigation, etc., should also be considered by the court in determining the amount, if any, of an award of an attorney's fee to the wife.

In sum, on the record presented, weighing the competing public policy interests in light of all of the relevant facts and circumstances as developed on the record, the Supreme Court did not err in determining that the provision of the parties' prenuptial agreement waiving the right to seek an award of an attorney's fee was unenforceable. Thus, we affirm the order insofar as appealed from.

ORDERED that the order is affirmed insofar as appealed from, on the law, with costs.

MILLER, J.P., GOLDSTEIN and DILLON, JJ., concur.

If the mother has legitimate concerns, like physical violence. or if the father has a drug problem, etc. The Courts can direct the father into the appropriate programs. However, all fathers will get some type of visitation with their children, and as long as the father stays with the recommendations of the Court, he will eventually have his children on a regular basis. Just becaseu a mother makes complaints does not mean that the Courts are going to listen.