DeMille v. DeMille: The Case of the Missing Rule of Law
Notes and Comments by Elliot D. Samuelson, Editor
As an avid fan of Nelson DeMille's novels, I was particularly attracted
to his recent litigation which again raises the question whether the six
year statute of limitations is tolled during marriage so as to permit
an action to set aside a pre or post nuptial agreement six years after
its execution. Alas, the enlightening decision that the bar was anxiously
awaiting from the second judicial department in
DeMille v. DeMille[i], was never written and we all shall continue to remain in the dark until
the Court Of Appeals revisits this issue. Instead we remain relegated
to the confusing application of CPLR 203(d).
The answer to this knotty question may depend upon the judicial department
where you reside. After two lower and two appellate court decisions, and
one by the Court of Appeals[ii] in another case, it appears that if DeMille himself had crafted this plot,
he could not have done a better job at creating mystery, intrigue and suspense.[iii]
Following is the only language contained in the second appellate
DeMille decision, that was just decided.
"The issue of the timeliness of the plaintiff's challenges to
the enforceability of the parties' prenuptial agreement, including
the ground raised in her motion for leave to renew, was argued and determined
on a prior appeal (see
DeMille v DeMille 5 AD3rd 428 [2004]. Thus, upon renewal, the Supreme Court should not have
granted the plaintiff's prior motion for summary judgment dismissing
the defendant's second counterclaim to enforce the agreement and should
not have set aside the agreement based on such challenges.[iv]
The two prior lower court decisions in
DeMille were written by Justice Falanga in the Nassau County Supreme Court. When
they are carefully scrutinized, it is clear that he believed a wrong was
perpetrated against Mrs. Demille in the negotiation and execution of the
prenuptial agreement and that the statute of limitations should not bar
her relief. He felt that the proper remedy was to award her summary judgment
to set it aside, and not be forced to await her husband's action for
divorce before doing so.
It is to be remembered that in
DeMille[v] , issue was not joined in the lower court when the motions and cross motions
were heard, which is a clear statutory violation. The motions should have
been dismissed with leave to renew upon joinder. In
DeMille 2, Justice Falanga believed that the first decision of the appellate division
was a nullity because of the joinder problem, but then permitted issue
to be joined, and once again found that summary judgment should be granted
to the wife and that, under CPLR 203(d), she was not barred by the statute
because she was a "defendant" making a counterclaim, and not
a plaintiff. The decisions are quite lengthy and should be read in their
entirety to grasp all the nuances of this case.
In considering this lingering conundrum, a short review of prior law, and
the dichotomy that exists between the first and second departments will
prove helpful. The second department has taken the path which compels
the statute of limitations to be strictly enforced, regardless of the
circumstances, where the wife is the plaintiff, and seeks to set aside
the agreement. However, it does permit a defendant to challenge the prenuptial
agreement after the statute of limitations has run, where a plaintiff
commences an action for divorce and relies upon the agreement to preclude
a division of marital assets. The genesis of these holdings is based upon the
Pacchiana[vi] decision in the second department, and more recently followed in the first
DeMille appellate decision. It explained that only a defendant could rely upon
CPLR 203(d)[vii] which would permit him or her to assert an otherwise untimely claim arising
out of the same transaction alleged in the complaint. The court cryptically
added that such procedure would be limited "... only as a shield
for recoupment purposes, and does not permit the defendant to obtain affirmative
relief."[viii] Finally it concluded that there is no legal support for a tolling of the
statute during marriage, totally ignoring
Lieberman, infra, in the first department decided in 1992, twelve years earlier, as well
as the Uniform Premarital Agreement Act, and the eighteen states that
all held to the contrary. There was not one word in either of the
DeMille appellate decisions to discuss this existing dichotomy of views.
[ix]The rule in the first department first propounded in the
Lieberman[x] case reasoned that the statute first begins to run after spouses separate,
i.e. one party removes from the marital residence, dies, or commences
an action for a divorce or separation. The court correctly concluded,
"...it would be anomalous to say that, irrespective of whether the
marriage ...is viable and continuing, the husband and wife must review
their premarital agreement and assume adversarial positions within the
first six years (sic. following the execution of the agreement) or forever
lose their right to challenge the agreement."
The efficacy of the holding in
Lieberman to suspend the statute of limitations during marriage, which as noted
above has been adopted in at least eighteen other states, and finds support
in Section 8 of the Uniform Premarital Agreement Act, was never reversed.
It postulates that, "Any statute of limitations applicable to an
action asserting a claim for relief under a premarital agreement is tolled
during the marriage of the parties to the agreement." In fact, the
Appellate Division in
Bloomfield, approved this result.[xi]
The disparate view in the second department, was briefed by counsel, and
believe it or not, was ignored by the Court of Appeals when it decidedBloomfield v Bloomfield[xii] and reviewed the first department's decision. Despite this conflict,
the high court chose to demur and decided the case based upon CPLR 203(d).
It explained that the claims and defenses that arise from the same transaction
asserted in the complaint are not barred by the statute of limitations.
It inexplicably refused to comment on the points raised in appellant's
brief arguing that there should be an express tolling of the statute during
marriage. Why the Court of Appeals sidestepped this issue, especially
where a sharp conflict exists between two judicial departments, is most
mystifying. It creates further difficulties since it failed to say whether
the tolling principle was incorrect, leaving two methods for a Supreme
Court justice to utilize if he wished to ignore the statute of limitations
in the first department. In any event, the bottom line in
Bloomfield appears to be that where the statute of limitations has run and it is raised
to defeat an attack on the agreement by a plaintiff, the defense will
be unavailable. Simply put, at least under
DeMille only a defendant can attack an unconscionable or unfair agreement by way
of counterclaim, and never by commencing an action for divorce, once the
statute has tolled.
Think about it for a moment. This result prevents a spouse from obtaining
a divorce, no matter how horrific the other's spouse's conduct
was, where there is a pre or post nuptial agreement that waives all property
and inheritance rights, and the statute of limitations has run. These
very circumstances are what compelled Justice Falanga to conclude that
to so prevent a wife from obtaining a divorce, would be unthinkable, under
all of the circumstances of the case.[xiii]
Put another way, should a plaintiff wife be able to attack the agreement
in the same way she could if her husband sues her for divorce and she,
as a defendant, attacks the agreement as being unconscionable and the
product of fraud, duress, or overreaching? To adopt a rule that would
make the statute go away only if the wife is the defendant, makes no rational sense.
For example, if the wife sought to attack the agreement after the statute
had run, and commenced an action for a divorce with a cause of action
to set aside the agreement, she would be precluded from doing so by the
statute of limitations. Nonetheless, if the husband commenced the action
and sought to uphold the agreement, the wife, as defendant would not be
barred from seeking to set it aside, despite the running of the statute.
Does such a result protect a spouse from leaving a marriage of long duration
with absolutely nothing if her husband never sues her for divorce?
When I went to law school I learned a principal that stayed with me during
forty-five years of practice, and that is for every wrong there is a remedy.
And I remember a Supreme Court judge long ago telling me during a settlement
conference in a contested matrimonial that neither the husband or his
spouse would leave his courtroom empty handed. It is no wonder that with
these principles in mind, it is impossible to reconcile the existing dichotomy
that exists between the judicial departments, let alone the decision of
the Court of Appeals to side step this issue.
If you are confused, and disappointed at this lack of clarity by the courts,
you are not alone. George Orwell's famous line that all animals are
equal but some animals are more equal than others, has resurfaced once
again, and has never been more appropriate to apply to a litigant. All
we can hope for at this juncture is that leave to appeal will be granted
after the final chapter in
DeMille v. DeMille is written.
*Elliot Samuelsonis the senior partner in the Garden City matrimonial law firm of Samuelson,
House & Samuelson, LLP and is a past president of the American Academy
of Matrimonial Lawyers, New York Chapter and is included in "The
Best Lawyers of America" and the "Bar Registry of Preeminent
Lawyers in America." He has appeared on both national and regional
television and radio programs, including Larry King Live. Mr. Samuelson
can be reached at (516) 294-6666 or info@SamuelsonHause.net.
Endnotes
[i]. 32 AD3d 411 (2d Dept. 2006)
[ii].
Bloomfield v. Bloomfield, 97 NY2d 188 (2004)
[iii]. We have just learned that the wife's motion to appeal to the
Court of Appeals was denied because the order appealed from was not a
final judgment...further leaving the issue unresolved. 2004 NY SlipOp
80094 (Nov. 20, 2006)
[v]. 5 AD3d 428 (2d Dept. 2004)
[vi]. 94 A.D.2d 721 (2d Dept. 1983)
[vii]. §203 (d) Defense or counterclaim. A defense or counterclaim
is interposed when a pleading containing it is served. A defense or counterclaim
is not barred if it was not barred at the time the claims asserted in
the complaint were interposed, except that if the defense or counterclaim
arose from the transactions, occurrences, or series of transactions or
occurrences, upon which a claim asserted in the complaint depends, it
is not barred to the extent of the demand in the complaint notwithstanding
that it was barred at the time the claims asserted in the complaint were
interposed.
[viii]. Whether the reference to recoupment in a matrimonial action is
proper, is quite questionable, since it appears only in commercial matters
and is a doctrine limited in scope.
[ix]. However
Abbate
v. Abbate, 82 A.D.2d 368 (2d Dept. 1981), seems to carve out an exception in the
second department when the fraud alleged is actual rather than constructive,
where the latter can be brought upon the discovery of the fraud rather
than the execution of the agreement.
[x]. 154 Misc2d 749 (Sup.Ct., NY Co., 1992)
[xi]. 281 AD2d 301 (1st Dept. 2001)
[xiii]. 5 Misc.3d 355 (Sup.Ct., Nassau Co., 2004)