Order, Supreme Court, New York County (Ellen Gesmer, J.), entered May 4, 2015, which, to the extent appealed from, denied plaintiff wife’s cross motion for partial summary judgment declaring that a condominium apartment located at 195 Hudson Street is the sole and separate property of plaintiff under the terms of the parties’ prenuptial agreement, and granted defendant husband’s motion for temporary maintenance, modified, on the law, to deny defendant’s motion for temporary maintenance, and otherwise affirmed, without costs.
The parties executed a trust agreement that designates the parties, individually and collectively, as “Trustor” of a trust that purchased the apartment at issue. The agreement was not valid because the parties’ signatures were never properly acknowledged. We agree with the wife that the agreement, which is unenforceable, cannot be considered as evidence (Selinger v Selinger, 44 AD3d 341, 342 [1st Dept 2007]). Nonetheless, issues of fact exist whether the parties intended to jointly own the apartment, and whether the husband was involved in any fraud in the preparation and execution of the trust agreement (see generally Ta Chun Wang v Chun Wong, [584]*584163 AD2d 300 [2d Dept 1990], lv denied 77 NY2d 804 [1991], cert denied 501 US 1252 [1991]). Thus, upon the motion court’s invalidation of the trust agreement, it properly declined to decide whether the deed should be reformed to reflect the wife or both parties as the true owner (US Bank N.A. v Lieberman, 98 AD3d 422, 423-424 [1st Dept 2012]).
Although the wife funded the purchase of the apartment and ordinarily would be considered the settlor (see Guaranty Trust Co. of N.Y. v New York Trust Co., 297 NY 45, 50 [1947]), the husband avers that the parties had agreed that the apartment would be joint property, and that consistent with that intention, he made certain payments towards maintenance and renovations. The parties’ prenuptial agreement is not dispositive of the issue, as it does not list the apartment as the wife’s separate property. In addition, it merely defines joint property as that “titled in the joint names of the parties,” and in this case the apartment is titled in the name of the invalidated trust. Reformation is an equitable remedy and the parties’ intent, as well as any questions of unclean hands, are relevant to the court’s determination. These issues must be explored at a hearing. Thus, the wife’s cross motion for partial summary judgment was properly denied.
After this action was commenced, the husband moved for an order awarding him temporary spousal support. The wife opposed the motion arguing, inter alia, that the parties’ prenuptial agreement contains a waiver of maintenance, both temporary and final. The court granted the husband’s motion and awarded him interim support, finding that the agreement did not contain the statutory language for waiving temporary maintenance, purportedly required by Domestic Relations Law former § 236 (B) (5-a) (f).
The motion court improperly granted the husband’s application for temporary maintenance. At the outset, the court should not have applied the requirements of Domestic Relations Law former § 236 (B) (5-a) (f) to the parties’ prenuptial agreement. That subdivision, which mandated the inclusion of certain language about temporary maintenance, is not applicable because the parties’ prenuptial agreement was entered into prior to the effective date of this statutory provision.
New York has a “strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, including prenuptial agreements” (Matter of Greiff, 92 NY2d 341, 344 [1998]). “Duly executed prenuptial agreements are accorded the same presumption of legality as any other contract” (Bloomfield v Bloomfield, 97 NY2d 188, 193 [585]*585[2001]), and like all contracts, “are construed in accord with the parties’ intent, which is generally gleaned from what is expressed in their writing” (Van Kipnis v Van Kipnis, 11 NY3d 573, 577 [2008]). Thus, a waiver of temporary maintenance will be enforced as long as the parties’ intent to do so is “clearly evidenced by the writing” (Strong v Dubin, 75 AD3d 66, 68 [1st Dept 2010] [internal quotation marks omitted]).
Applying these principles, we find that the broad and expansive language used by the parties in their agreement forecloses the husband from seeking any kind of spousal support, including temporary support. After acknowledging and representing that they are “fully capable of being self supporting,” the parties agreed to “waive any and all claims for spousal support and/or maintenance” “both now and in the future.” By using the words “any and all,” the parties, in this particular agreement, clearly signaled their intention that the waiver would encompass both temporary and final awards of spousal support. And the words “in the future” can only mean any time after the agreement was executed, which necessarily includes when the husband’s present motion was made.
Further, in the agreement, the maintenance waiver appears below the heading “MAINTENANCE/SPOUSAL SUPPORT UPON TERMINATION OF MARRIAGE.” Under Article I of the agreement, the “termination of the marriage” is “deemed to have occurred,” inter alia, “upon commencement or institution of any matrimonial action to dissolve or annul the marriage ... by either party.” Thus, by tying the maintenance waiver to the “termination of the marriage,” as that term is defined in the agreement, the parties clearly intended the waiver to cover any maintenance request made, as here, after the commencement of a divorce action (see Valente v Valente, 269 AD2d 389, 389-390 [2d Dept 2000] [temporary maintenance foreclosed where the parties, who were separated, agreed to waive maintenance in the event of separation, divorce or annulment]; Clanton v Clanton, 189 AD2d 849, 850 [2d Dept 1993] [denying request for temporary maintenance where the prenuptial agreement renounced all claims “under any circumstances” for maintenance in the event of the “breakup” of the marriage by “separation or otherwise”]).
The parties’ failure to use the terms “temporary support” or “interim support” does not warrant a different result. Although the dissent acknowledges that “no particular catechism is required to waive temporary maintenance claims,” it nevertheless finds the agreement ambiguous and suggests that the parties may only have intended to waive a final award of mainte[586]*586nance. No fair reading of the agreement supports that conclusion. When read as a whole, the agreement contains no ambiguity as to whether the parties intended to waive temporary maintenance. As noted, the agreement waives “any and all” maintenance claims, “now and in the future.” Contrary to the dissent’s view, there is nothing imprecise about the phrase “any and all.” Indeed, this Court has repeatedly found the use of that phrase to be “clear” (see e.g. Miller v Miller, 82 AD3d 469, 469 [1st Dept 2011]; Coby Group, LLC v Kriss, 63 AD3d 569, 570 [1st Dept 2009]; Broadcast News Networks, Inc. v Loeb & Loeb, LLP, 40 AD3d 441 [1st Dept 2007]). Further, although minimized by the dissent, the agreement explicitly states that the parties are “fully capable of being self supporting,” which is another indicia that neither intended to seek any kind of maintenance.
Free access — add to your briefcase to read the full text and ask questions with AI
Order, Supreme Court, New York County (Ellen Gesmer, J.), entered May 4, 2015, which, to the extent appealed from, denied plaintiff wife’s cross motion for partial summary judgment declaring that a condominium apartment located at 195 Hudson Street is the sole and separate property of plaintiff under the terms of the parties’ prenuptial agreement, and granted defendant husband’s motion for temporary maintenance, modified, on the law, to deny defendant’s motion for temporary maintenance, and otherwise affirmed, without costs.
The parties executed a trust agreement that designates the parties, individually and collectively, as “Trustor” of a trust that purchased the apartment at issue. The agreement was not valid because the parties’ signatures were never properly acknowledged. We agree with the wife that the agreement, which is unenforceable, cannot be considered as evidence (Selinger v Selinger, 44 AD3d 341, 342 [1st Dept 2007]). Nonetheless, issues of fact exist whether the parties intended to jointly own the apartment, and whether the husband was involved in any fraud in the preparation and execution of the trust agreement (see generally Ta Chun Wang v Chun Wong, [584]*584163 AD2d 300 [2d Dept 1990], lv denied 77 NY2d 804 [1991], cert denied 501 US 1252 [1991]). Thus, upon the motion court’s invalidation of the trust agreement, it properly declined to decide whether the deed should be reformed to reflect the wife or both parties as the true owner (US Bank N.A. v Lieberman, 98 AD3d 422, 423-424 [1st Dept 2012]).
Although the wife funded the purchase of the apartment and ordinarily would be considered the settlor (see Guaranty Trust Co. of N.Y. v New York Trust Co., 297 NY 45, 50 [1947]), the husband avers that the parties had agreed that the apartment would be joint property, and that consistent with that intention, he made certain payments towards maintenance and renovations. The parties’ prenuptial agreement is not dispositive of the issue, as it does not list the apartment as the wife’s separate property. In addition, it merely defines joint property as that “titled in the joint names of the parties,” and in this case the apartment is titled in the name of the invalidated trust. Reformation is an equitable remedy and the parties’ intent, as well as any questions of unclean hands, are relevant to the court’s determination. These issues must be explored at a hearing. Thus, the wife’s cross motion for partial summary judgment was properly denied.
After this action was commenced, the husband moved for an order awarding him temporary spousal support. The wife opposed the motion arguing, inter alia, that the parties’ prenuptial agreement contains a waiver of maintenance, both temporary and final. The court granted the husband’s motion and awarded him interim support, finding that the agreement did not contain the statutory language for waiving temporary maintenance, purportedly required by Domestic Relations Law former § 236 (B) (5-a) (f).
The motion court improperly granted the husband’s application for temporary maintenance. At the outset, the court should not have applied the requirements of Domestic Relations Law former § 236 (B) (5-a) (f) to the parties’ prenuptial agreement. That subdivision, which mandated the inclusion of certain language about temporary maintenance, is not applicable because the parties’ prenuptial agreement was entered into prior to the effective date of this statutory provision.
New York has a “strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, including prenuptial agreements” (Matter of Greiff, 92 NY2d 341, 344 [1998]). “Duly executed prenuptial agreements are accorded the same presumption of legality as any other contract” (Bloomfield v Bloomfield, 97 NY2d 188, 193 [585]*585[2001]), and like all contracts, “are construed in accord with the parties’ intent, which is generally gleaned from what is expressed in their writing” (Van Kipnis v Van Kipnis, 11 NY3d 573, 577 [2008]). Thus, a waiver of temporary maintenance will be enforced as long as the parties’ intent to do so is “clearly evidenced by the writing” (Strong v Dubin, 75 AD3d 66, 68 [1st Dept 2010] [internal quotation marks omitted]).
Applying these principles, we find that the broad and expansive language used by the parties in their agreement forecloses the husband from seeking any kind of spousal support, including temporary support. After acknowledging and representing that they are “fully capable of being self supporting,” the parties agreed to “waive any and all claims for spousal support and/or maintenance” “both now and in the future.” By using the words “any and all,” the parties, in this particular agreement, clearly signaled their intention that the waiver would encompass both temporary and final awards of spousal support. And the words “in the future” can only mean any time after the agreement was executed, which necessarily includes when the husband’s present motion was made.
Further, in the agreement, the maintenance waiver appears below the heading “MAINTENANCE/SPOUSAL SUPPORT UPON TERMINATION OF MARRIAGE.” Under Article I of the agreement, the “termination of the marriage” is “deemed to have occurred,” inter alia, “upon commencement or institution of any matrimonial action to dissolve or annul the marriage ... by either party.” Thus, by tying the maintenance waiver to the “termination of the marriage,” as that term is defined in the agreement, the parties clearly intended the waiver to cover any maintenance request made, as here, after the commencement of a divorce action (see Valente v Valente, 269 AD2d 389, 389-390 [2d Dept 2000] [temporary maintenance foreclosed where the parties, who were separated, agreed to waive maintenance in the event of separation, divorce or annulment]; Clanton v Clanton, 189 AD2d 849, 850 [2d Dept 1993] [denying request for temporary maintenance where the prenuptial agreement renounced all claims “under any circumstances” for maintenance in the event of the “breakup” of the marriage by “separation or otherwise”]).
The parties’ failure to use the terms “temporary support” or “interim support” does not warrant a different result. Although the dissent acknowledges that “no particular catechism is required to waive temporary maintenance claims,” it nevertheless finds the agreement ambiguous and suggests that the parties may only have intended to waive a final award of mainte[586]*586nance. No fair reading of the agreement supports that conclusion. When read as a whole, the agreement contains no ambiguity as to whether the parties intended to waive temporary maintenance. As noted, the agreement waives “any and all” maintenance claims, “now and in the future.” Contrary to the dissent’s view, there is nothing imprecise about the phrase “any and all.” Indeed, this Court has repeatedly found the use of that phrase to be “clear” (see e.g. Miller v Miller, 82 AD3d 469, 469 [1st Dept 2011]; Coby Group, LLC v Kriss, 63 AD3d 569, 570 [1st Dept 2009]; Broadcast News Networks, Inc. v Loeb & Loeb, LLP, 40 AD3d 441 [1st Dept 2007]). Further, although minimized by the dissent, the agreement explicitly states that the parties are “fully capable of being self supporting,” which is another indicia that neither intended to seek any kind of maintenance.
The dissent also discounts the heading above the maintenance waiver that makes clear that the parties intended to waive “any and all” spousal support claims that arise after the initiation of a divorce action, which necessarily includes temporary support. The definition in Article I of “termination of the marriage” shows that the parties, who were both represented by counsel, recognized that there is a difference between the filing of a divorce action and the issuance of a final judgment of divorce. They specifically provided that the agreement’s broad maintenance waiver goes into effect upon the initiation of the divorce case, and not when the final judgment is rendered.
The cases relied upon by the dissent are distinguishable. In the prenuptial agreement in Lennox v Weberman (109 AD3d 703, 704 [1st Dept 2013]), the defendant waived any claim to a final award of maintenance, and there was no express agreement to exclude an award of temporary maintenance. Here, in contrast, the parties did not limit themselves to waiving final maintenance, but rather waived “any and all” maintenance “now and in the future.” Thus, unlike Lennox, the prenuptial agreement here, especially when read in conjunction with the parties’ definition of “termination of the marriage,” reflects a clear intent to exclude temporary support. In Tregellas v Tregellas (169 AD2d 553, 553 [1st Dept 1991]), the Court merely found that the particular prenuptial agreement in that case did not bar an award of temporary support. There is no indication in Tregellas that the parties used the expansive language employed here or that they tied the waiver of maintenance to all support requests made after commencement of a matrimonial action. Finally, McKenna v McKenna (121 AD3d 864 [2d [587]*587Dept 2014]) contains no facts as to the specific wording of the prenuptial agreement and does not resolve the issue presented here.
The dissent effectively holds that parties to a prenuptial agreement must include the terms “temporary maintenance” or “interim spousal support” if they wish to waive these claims. No case has ever held this, and it is inaccurate for the dissent to claim that such a requirement is not mandating a particular catechism. Counsel who represented the parties when they signed the agreement cannot be faulted, as the dissent implies, for failing to include these “magic words” because no court had ever required that they do so. Although the current dispute would have been obviated by the use of such language, the critical question is whether the waiver executed by the parties unambiguously encompassed both temporary and final maintenance, which it did.
Even though one of this Court’s cases uses the word “express” when talking about waivers of temporary maintenance, in Strong v Dubin (75 AD3d 66), we emphasized that when interpreting a prenuptial agreement “ ‘[p] articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby’ ” (id. at 69, quoting Kass v Kass, 91 NY2d 554, 566 [1998]). All that is required for an effective waiver is that the parties’ intent to opt out of the statutory scheme be “clearly evidenced by the writing” (Strong v Dubin, 75 AD3d at 68 [internal quotation marks omitted]).
This case presents a simple question of contractual interpretation, and has nothing to do with the court’s discretion in fashioning maintenance awards. It involves the interpretation of a duly executed prenuptial agreement, which is given the same presumption of legality as any other contract (Bloomfield v Bloomfield, 97 NY2d at 193), a principle that is well established in this state’s jurisprudence. Here, both parties, represented by counsel, contracted to waive all claims of [588]*588spousal support, both temporary and final, and they should be held to their bargain.
Concur—Friedman, J.P., Andrias and Richter, JJ.
Although Domestic Relations Law § 236 (B) (3) also provides that maintenance provisions be fair and reasonable at the time the agreement was entered into, and not unconscionable at the time of entry of final judgment, this case presents no challenge to the prenuptial agreement on either of these grounds.