        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1108
CA 13-02249
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


NICHOLAS D. TRBOVICH, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JACQUELINE TRBOVICH, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO, BOUVIER PARTNERSHIP, LLP,
EAST AURORA, THE COSGROVE LAW FIRM (EDWARD C. COSGROVE OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

LAW OFFICE OF JOSEPH G. MAKOWSKI, BUFFALO (JOSEPH G. MAKOWSKI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (James H.
Dillon, J.), entered September 13, 2013 in a divorce action. The
order, among other things, denied plaintiff’s motion for, inter alia,
summary judgment.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting plaintiff’s motion in part and vacating the
award of temporary maintenance and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff husband appeals from three orders in this
matrimonial action. By the order in appeal No. 1, Supreme Court
denied plaintiff’s motion for, inter alia, summary judgment seeking a
divorce pursuant to Domestic Relations Law § 170 (7) and to vacate a
prior ex parte order awarding temporary maintenance to defendant. By
the order in appeal No. 2, the court granted defendant’s motion for
attorneys’ fees in the amount of $56,190, subject to equitable
distribution and, by the order in appeal No. 3, the court, inter alia,
directed plaintiff to respond to defendant’s discovery demands and
scheduled plaintiff’s deposition.

     We conclude in appeal No. 1 that the court properly denied that
part of plaintiff’s motion for summary judgment seeking a divorce
pursuant to Domestic Relations Law § 170 (7). The requirements for a
divorce under that section are (1) a statement under oath by one party
that the relationship has broken down irretrievably for a period of at
least six months; and (2) a resolution of “the economic issues of
equitable distribution of marital property, the payment or waiver of
spousal support, the payment of child support, the payment of counsel
and experts’ fees and expenses as well as the custody and visitation
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                                                         CA 13-02249

with the infant children of the marriage” (id.). We agree with
plaintiff that the opposing spouse in a no-fault divorce action
pursuant to Domestic Relations Law § 170 (7) is not entitled to
litigate the other spouse’s sworn statement that the relationship has
broken down irretrievably for a period of at least six months (see
Palermo v Palermo, 35 Misc 3d 1211[A], 2011 NY Slip Op 52506[U], *15,
affd for reasons stated 100 AD3d 1453; see e.g. Rinzler v Rinzler, 97
AD3d 215, 218; A.C. v D.R., 32 Misc 3d 293, 306). To the extent that
our decision in Tuper v Tuper (98 AD3d 55, 59 n) suggested otherwise,
we decline to follow it.

     Nevertheless, plaintiff is not entitled to summary judgment under
Domestic Relations Law § 170 (7) at this juncture of the litigation.
The statute provides that “[n]o judgment of divorce shall be granted
under this subdivision unless and until” the ancillary economic and
custodial issues “have been resolved by the parties, or determined by
the court and incorporated into the judgment of divorce” (§ 170 [7]),
and here the ancillary issues have not been resolved by the parties or
determined by the court (see Palermo, 35 Misc 3d 1211[A], 2011 NY Slip
Op 52506[U], *15; A.C., 32 Misc 3d at 308).

     In appeal Nos. 1 and 2, plaintiff contends that the court erred
in granting defendant pendente lite relief in the form of housing
expenses and weekly support (collectively, temporary maintenance) and
in granting defendant’s motion for attorneys’ fees because the
parties’ prenuptial agreement precludes such awards. We agree. As an
initial matter, we reject defendant’s contention that any issue
concerning the award of temporary maintenance is not properly before
us. Although no appeal lies from an ex parte order (see CPLR 5701 [a]
[2]; Sholes v Meagher, 100 NY2d 333, 335), here plaintiff, by way of
the instant motion on notice that is the subject of appeal No. 1,
sought to vacate the ex parte order awarding temporary maintenance and
then took an appeal from the order in appeal No. 1, which denied his
motion in all respects and continued the prior order (see CPLR 5701
[a] [3]; Sholes, 100 NY2d at 335; Village of Savona v Soles, 84 AD2d
683, 684-685).

     With respect to the merits of plaintiff’s contention, we note
that “[i]t is well settled that duly executed prenuptial agreements
are generally valid and enforceable given the ‘strong public policy
favoring individuals ordering and deciding their own interests through
contractual arrangements’ ” (Van Kipnis v Van Kipnis, 11 NY3d 573,
577, quoting Bloomfield v Bloomfield, 97 NY2d 188, 193; see Domestic
Relations Law § 236 [B] [3]). “[A] prenuptial agreement is accorded
the same presumption of legality as any other contract . . . and the
validity of such an agreement is presumed unless the party opposing
the agreement comes forward with evidence demonstrating ‘fraud,
duress, or overreaching, or that the agreement or stipulation is . . .
unconscionable’ ” (Darrin v Darrin, 40 AD3d 1391, 1392-1393, lv
dismissed 9 NY3d 914). “As with all contracts, prenuptial agreements
are construed in accord with the parties’ intent, which is generally
gleaned from what is expressed in their writing” (Van Kipnis, 11 NY3d
at 577). “When interpreting a contract, such as a prenuptial
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                                                         CA 13-02249

agreement . . . , ‘the court should arrive at a construction that will
give fair meaning to all of the language employed by the parties to
reach a practical interpretation of the expressions of the parties so
that their reasonable expectations will be realized’ ” (Noach v Noach,
53 AD3d 602, 603; see Kass v Kass, 91 NY2d 554, 567).

     Here, the prenuptial agreement provides that, “[i]n the event of
an action for dissolution of the contemplated marriage, [defendant]
and [plaintiff] each waives and releases any right she or he may have
under the law now or hereinafter in effect for temporary alimony or
attorneys’ fees.” The agreement also indicates that “maintenance” is
“commonly referred to as alimony.” Thus, the parties entered into a
prenuptial agreement in which each waived and released any right to
temporary maintenance and attorneys’ fees after the institution of an
action for dissolution of the marriage. “That agreement is
controlling unless and until it is set aside” (Rubin v Rubin, 262 AD2d
390, 391). Although defendant has asserted counterclaims seeking to
vacate the agreement, she has not moved for summary judgment on those
counterclaims and has not proffered any evidence “to establish fraud,
overreaching, concealment, misrepresentation or some form of deception
on the part of [plaintiff], as required in order to overcome the
presumption of legality of the agreement” (Costanza v Costanza [appeal
No. 2], 199 AD2d 988, 989; see Darrin, 40 AD3d at 1392-1393). Thus,
the court erred in awarding temporary maintenance and attorneys’ fees
inasmuch as such awards are barred by the plain terms of the valid
agreement. We therefore modify the order in appeal No. 1 by granting
that part of plaintiff’s motion seeking to vacate the award of
temporary maintenance, and we reverse the order in appeal No. 2
granting defendant’s motion for attorneys’ fees.

     We have reviewed plaintiff’s remaining contentions in appeal No.
1 and conclude that they lack merit.

     Finally, the order in appeal No. 3 was issued following a
compliance conference requested by defendant, and it “is not
appealable as of right because it does not decide a motion made on
notice” (Koczen v VMR Corp., 300 AD2d 285, 285; see CPLR 5701 [a]
[2]). We therefore dismiss plaintiff’s appeal from the order in
appeal No. 3.

     All concur except LINDLEY, J., who concurs in the result in the
following Memorandum: Although I concur in the result reached by the
majority, I write separately because I respectfully disagree with its
conclusion that defendant is not entitled to a trial on the issue of
whether the parties’ relationship has broken down irretrievably for a
period of at least six months. Domestic Relations Law § 173 reads:
“In an action for divorce there is a right to trial by jury of the
issues of the grounds for granting the divorce.” One of the “grounds”
for divorce in New York is that “[t]he relationship between husband
and wife has broken down irretrievably for a period of at least six
months, provided that one party has so stated under oath” (§ 170 [7]).
It thus stands to reason that a defendant in a matrimonial action is
entitled to contest at trial his or her spouse’s sworn statement that
the marital relationship has broken down irretrievably for a period of
                                 -4-                          1108
                                                         CA 13-02249

six months. To conclude otherwise is to assume that the Legislature,
when it enacted section 170 (7) in 2010, made a mistake in failing to
amend section 173 so as to state that there is no right to a jury
trial with respect to the no-fault grounds. It is well settled,
however, that the “clearest indicator of legislative intent is the
statutory text” (Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d
577, 583; see Matter of Excellus Health Plan, Inc. v Serio, 2 NY3d
166, 171), and that a court may not “by a process of judicial
legislative revision” effectuate an intent that the Legislature failed
to express, omitted, or excluded (Valladares v Valladares, 55 NY2d
388, 393; see Pajak v Pajak, 56 NY2d 394, 397-398). As has been
stated elsewhere, if the Legislature “intended to abolish the right to
trial for the grounds contained in Domestic Relations Law § 170 (7),
it would have explicitly done so” (Strack v Strack, 31 Misc 3d 258,
263; see Schiffer v Schiffer, 33 Misc 3d 795, 800).

     Unlike the majority, I cannot agree with the conclusion reached
in Palermo v Palermo (35 Misc 3d 1211[A], 2011 NY Slip Op 52506[U],
affd 100 AD3d 1453), which admittedly has gained widespread acceptance
at the trial level (see e.g. G.T. v A.T., 43 Misc 3d 500, 509; Matter
of Perricelli, 36 Misc 3d 418, 424-425; Filstein v Bromberg, 36 Misc
3d 404, 408-409; Townes v Coker, 35 Misc 3d 543, 546-550; Vahey v
Vahey, 35 Misc 3d 691, 693-695). To begin with, I do not perceive “an
apparent collision of the no-fault entitlement under DRL § 170 (7),
and the trial right under DRL § 173” (Palermo, 35 Misc 3d at *4).
Section 170 (7) does not state that a divorce may be obtained by a
sworn statement from one party that the relationship has broken down
irretrievably for a period of at least six months; rather, the statute
provides that “[a]n action for divorce may be maintained” by providing
such a sworn statement (emphasis added). In my view, that language is
not inconsistent with section 173 insofar as it grants parties in a
matrimonial action the right to contest grounds at trial. Because
there is no conflict between the two statutes, I see no need to delve
into the legislative history in an attempt to discern the
Legislature’s intent behind section 170 (7). In any event, as noted
in Tuper v Tuper (98 AD3d 55, 59 n), the sponsor of the no-fault bill
in the New York State Assembly, Assemblyman Jonathan Bing, repeatedly
stated during the debate in the Assembly that a defendant in a no-
fault case will have the right to a jury trial to contest whether
there exists an irretrievable breakdown in the marital relationship
(see NY Assembly Debate on Assembly Bill A9753-A, July 1, 2010,
transcript at 231-238).

     Finally, although I agree that allowing a party to obtain a
divorce by the mere filing of a sworn statement that there has been an
irretrievable breakdown in the marital relationship will no doubt
“lessen the burden on both parties and promote judicial economy by
obviating the necessity of a trial on the issue of fault” (Rinzler v
Rinzler, 97 AD3d 215, 218), that, in my view, is a policy
determination that should be made by the Legislature, not the courts.
In short, I submit that we should be constrained to apply the law as
unambiguously set forth in Domestic Relations Law § 173, however
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                                                     CA 13-02249

unwise and undesirable the result may be.




Entered:   November 21, 2014                Frances E. Cafarell
                                            Clerk of the Court
