| Kumar v Kumar |
| 2012 NY Slip Op 05226 [96 AD3d 1323] |
| June 28, 2012 |
| Appellate Division, Third Department |
| Satish Kumar, Respondent-Appellant, v Aruna Kumar,Appellant-Respondent. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Mark E. Cerasano of counsel), forrespondent-appellant.
Stein, J. Cross appeals from an order of the Supreme Court (Nolan Jr., J.), entered January26, 2011 in Saratoga County, which, among other things, partially denied the parties' motions for,among other things, summary judgment.
In 1997, plaintiff (hereinafter the husband) commenced an action for divorce againstdefendant (hereinafter the wife). A judgment of divorce was entered in January 2001 which, aspertinent here, incorporated an August 2000 stipulation between the parties concerning, amongother things, the distribution of their marital property. Annexed to the stipulation and referencedtherein was a statement of proposed disposition (hereinafter SPD) prepared by the husband,which purported to accurately identify all marital assets, the value of which was to be dividedequally between them.
In 2004, the husband commenced this action to set aside the stipulation on the basis that thewife had fraudulently concealed the existence of marital assets prior to settlement of the divorceaction; the husband sought, among other things, an order directing the wife to pay him 50% ofthe value of the concealed assets. In her answer, the wife asserted counterclaims—alleging,among other things, that the husband had converted and secreted marital funds and had [*2]intentionally failed to distribute them to her pursuant to thestipulation—and sought vacatur of the stipulation. Following a nonjury trial, at which thewife presented no evidence as a result of a preclusion order, Supreme Court (Seibert, J.) foundthat the wife had fraudulently concealed the existence of marital assets and directed the parties toequally divide all of their marital property. Upon the wife's appeal, we reversed and remitted thematter to Supreme Court, finding error in its order precluding the wife from offering evidence atthe trial (Kumar v Kumar, 63 AD3d1246, 1248-1249 [2009]).
In 2009, the husband filed and served an amended complaint asserting claims alleging fraudand unjust enrichment and seeking vacatur of the stipulation, as well as a direction from SupremeCourt that the wife distribute 50% of the value of all concealed assets. The wife served anamended answer in which she asserted counterclaims seeking, among other things, recovery ofmarital assets allegedly converted by the husband; notably, she did not reassert her claim seekingvacatur of the August 2000 stipulation.
The wife thereafter moved for summary judgment dismissing the complaint and for reliefbased upon her counterclaims. The husband cross-moved for, among other things, leave to file asecond amended complaint—which sought to add a cause of action for enforcement, inaddition to the existing cause of action seeking vacatur of the parties' stipulation—as wellas summary judgment on his claims and dismissing the wife's counterclaims. Supreme Court(Nolan Jr., J.) concluded, as pertinent here, that the August 2000 stipulation was valid andenforceable, that all of the parties' marital property—whether or not specifically identifiedin the stipulation—was subject to distribution pursuant to its terms and that certain bankaccounts held by the wife constituted marital property. Accordingly, the court granted partialsummary judgment dismissing both parties' causes of action for vacatur of thestipulation,[FN1]otherwise denied the wife's motion for summary judgment dismissing the complaint and grantedthe husband's cross motion for leave to amend the complaint. In addition, the court partiallygranted the husband's motion for summary judgment to the extent that it dismissed the wife'scounterclaims as they related to financial transactions prior to 1997. The wife nowappeals[FN2]and the husband cross-appeals.
Initially, we concur with the wife's contention that Supreme Court erred in concluding thatmarital assets not specifically identified in the parties' stipulation are subject to distributionpursuant to its terms. It is well settled that a stipulation incorporated, but not merged, into ajudgment of divorce is a contract and is, therefore, subject to the rules governing contractinterpretation (see McCoy v Feinman, 99 NY2d 295, 302 [2002]; Dagliolo v Dagliolo, 91 AD3d1260, 1260 [2012]; LaPierre vLaPierre, 84 AD3d 1497, 1498 [2011]; Ross v Ross, 16 AD3d 713, 714 [2005]). Accordingly, where anagreement is unambiguous, we must ascertain the [*3]parties'intent "from within the four corners of the instrument, and not from extrinsic evidence" (Rossv Ross, 16 AD3d at 714 [internal quotation marks and citations omitted]; see McCoy vFeinman, 99 NY2d at 302; Dagliolo v Dagliolo, 91 AD3d at 1260).
Inasmuch as our review of the stipulation here reveals no ambiguity, we must give its termstheir plain meaning (see Dagliolo v Dagliolo, 91 AD3d at 1260; Matter of Lerman v Haines, 85 AD3d1248, 1248-1249 [2011]). The stipulation clearly provides that "[a]ll assets that are claimedto be marital property are identified in [the husband's] statement of proposed disposition," andfurther provides that each party is to receive certain items of such property, resulting in a 50/50division of the total value thereof. Notably, while the husband points to, and Supreme Courtrelies on, a particular statement contained in the SPD purportedly establishing the parties' intentto divide all marital property equally, the SPD was signed only by the husband and hisattorney and reflects his pretrial proposal for equitable distribution; it cannot besaid to reflect the wife's intent, nor is it a part of the stipulation. Thus, Supreme Courterroneously interpreted the stipulation as including assets not specifically identified in thehusband's SPD.
However, we are also of the view that Supreme Court erred in granting the wife's motion forsummary judgment dismissing the husband's cause of action for vacatur of the stipulation basedupon the wife's alleged fraud in failing to disclose marital assets. In order to establish fraud, thehusband is required to prove that the wife made a "misrepresentation of a material fact, whichwas known by [her] to be false and intended to be relied on when made, and that there wasjustifiable reliance and resulting injury" (Ventur Group, LLC v Finnerty, 68 AD3d 638, 639 [2009] [internalquotation marks and citation omitted]; see GoSmile, Inc. v Levine, 81 AD3d 77, 81 [2010], lvdismissed 17 NY3d 782 [2011]). Here, Supreme Court properly determined that, to theextent the funds in the accounts allegedly concealed by the wife were derived from the profits ofmarital business enterprises, they constituted marital property despite the fact that they wereearned after the commencement of the divorce action (see Glazer v Glazer, 190 AD2d951, 953 [1993]; Ducharme v Ducharme, 145 AD2d 737, 738 [1988], lv denied73 NY2d 708 [1989]; Siegel v Siegel, 132 AD2d 247, 255 [1987], appealdismissed 71 NY2d 1021 [1988], lv denied 74 NY2d 602 [1989]).[FN3]The husband also points to other marital assets that he alleges were not disclosed by the wifeprior to the stipulation.
Nonetheless, neither party has established his or her entitlement to summary judgment withrespect to this cause of action. In support of her motion, the wife submitted her own detailedaffidavit, together with a copy of her statement of net worth and a copy of a document preparedby the husband in 1997—each of which listed several of the accounts alleged to have beenconcealed—as well as other documentation that she claims demonstrate that the husbandwas or should have been aware of such accounts and other purportedly concealed assets. Inopposing the wife's motion and in support of his cross motion for summary judgment, thehusband submitted documentation of treasury bonds owned by the wife that were not disclosedon her statement of net worth, together with his affidavit, in which he denied knowledge of otherassets of which the wife claimed he should have been aware.[*4]
Viewing this evidence in the light most favorable to thenonmoving party with respect to each summary judgment motion, we find that triable issues offact exist which preclude summary judgment (see CPLR 3212 [b]; Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [2011]).While there is some evidence that the husband was, or should have been, aware of certainallegedly concealed assets, several others were left unaccounted for and we cannot determine as amatter of law which, if any, of the allegedly concealed assets the husband was, or should havebeen, aware. Accordingly, questions of fact remain as to whether the wife intentionallymisrepresented the assets in her possession at the time of the stipulation in order to induce thehusband to enter into the stipulation and whether the husband's reliance on any suchmisrepresentation(s) was justifiable, all of which preclude summary judgment to either party onthe husband's cause of action for vacatur of the stipulation (see CPLR 3212 [b];Alvarez v Prospect Hosp., 68 NY2d at 324; Winne v Town of Duanesburg, 86AD3d at 780-781).[FN4]
The parties' remaining contentions have been considered and are unavailing.
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order ismodified, on the law, without costs, by (1) reversing so much thereof as granted defendant'smotion for summary judgment dismissing plaintiff's cause of action seeking vacatur of theAugust 30, 2000 stipulation, and (2) vacating so much thereof as (a) found that said stipulation isbinding and governs the division of all marital property and is not limited to the assets set forth inplaintiff's statement of proposed disposition, (b) directed that all marital assets owned by theparties as of August 30, 2000 be distributed as provided for in said stipulation, and (c) appointeda referee to hear and report to Supreme Court what assets were owned and the value thereof as ofAugust 30, 2000; matter remitted to the Supreme Court for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.
Footnote 1: As noted above, the wife nolonger had a counterclaim seeking such relief.
Footnote 2: Inasmuch as the wife has notaddressed in her appellate brief that portion of Supreme Court's order that granted the husbandpermission to file a second amended complaint, we deem such issue to be abandoned (see Matter of D'Angelo v Lopez, 94AD3d 1261, 1262 n 1 [2012]; Matter of Barnes v Fischer, 93 AD3d 967, 968 [2012]).
Footnote 3: We also note that the wife wasobligated to disclose the existence of the subject accounts and all other assets in her statement ofnet worth regardless of whether they were marital or separate (see 22 NYCRR 202.16).
Footnote 4: As Supreme Court found,questions of fact also exist with regard to the wife's claim that the husband converted maritalassets after the commencement of the divorce action, which must be addressed in the event thestipulation is vacated.