DeMille vs. DeMille: The Case of the Missing Rule of Law We're the Calm Beneath Your Storm

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,

" would be anomalous to say that, irrespective of whether the marriage 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 Samuelson is the senior partner in the Garden City matrimonial law firm of Samuelson Hause PLLC 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


[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)

[iv]. See Endnote 1

[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)

[xii]. See Endnote 2

[xiii]. 5 Misc.3d 355 (Sup.Ct., Nassau Co., 2004)

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