35 Misc. 3d 543
N.Y. Sup. Ct.2012Background
- Married in 1981; three emancipated children; 2007 postnuptial agreement on maintenance, support, and equitable distribution.
- Wife filed a divorce action in 2008 (action No. 2 through later consolidation) after an earlier 2008 action related to constructive abandonment.
- March 2009 stipulation allowed husband to initiate a separate action on constructive abandonment; wife consented to divorce on that ground.
- Husband commenced action for divorce based on constructive abandonment in 2009 (action No. 1); wife answered consenting to divorce, no counterclaim.
- February 2011 wife filed action No. 2 and sought consolidation; court consolidated actions and held hearings and mediations; no-fault grounds later invoked.
- Court granted wife summary judgment on no-fault grounds (DRL 170(7)) and granted postnuptial agreement validity; awarded partial attorney’s fees to wife; other fee requests denied or reduced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DRL 170(7) supports divorce without trial. | Coker asserts irretrievable breakdown under oath. | Townes denies irretrievable breakdown; asserts potential defenses. | Granted no-trial divorce under DRL 170(7). |
| Validity and enforceability of the postnuptial agreement as to ED, support, and maintenance. | Coker argues postnuptial agreements control distribution and support. | Townes consents to validity but may contest amounts. | Granted as to validity and dispositive effect. |
| Award of attorney’s fees under DRL 237 pendente lite in action No. 2. | Coker seeks $40,000; Townes should pay. | Townes disputes or limits amount. | Partial grant; Townes to pay $27,810.58 within 30 days. |
| Reargument of prior fee denial in action No. 1. | Coker seeks reargument of denial of fees. | Townes opposes reargument; some branches moot. | Branch A moot; Branch B denied as reargument not granted. |
| Whether to grant summary judgment on other issues or preserve remaining matters. | Coker seeks broader relief via summary judgment. | Townes opposes; issues unresolved. | Summary judgment granted on no-fault grounds and postnuptial validity; other matters denied. |
Key Cases Cited
- Strack v Strack, 31 Misc 3d 258 (Sup Ct, Essex County 2011) (no-fault no-defense debate; no right to trial under DRL 170(7))
- A.C. v D.R., 32 Misc 3d 293 (Sup Ct, Nassau County 2011) (subjective declaration of irretrievable breakdown sufficient; no defense to 170(7))
- Bogoni v Friedlander, 197 AD2d 281 (1st Dept 1994) (court will not tolerate changing sworn allegations to create defense)
- Skinner v Dayton, 19 Johns 513 (1822) (marital partnership concept; no-fault rationale supports unilateral dissolution)
- Schiffer v Schiffer, 33 Misc 3d 795 (Sup Ct, Dutchess County 2011) (cited for related discussion on no-fault divorce)