McCarthy v. Estate of McCarthy

145 F. Supp. 3d 278, 2015 U.S. Dist. LEXIS 153107, 2015 WL 7019768
CourtDistrict Court, S.D. New York
DecidedNovember 10, 2015
DocketNo. 14-CV-6194 (JMF)
StatusPublished
Cited by3 cases

This text of 145 F. Supp. 3d 278 (McCarthy v. Estate of McCarthy) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarthy v. Estate of McCarthy, 145 F. Supp. 3d 278, 2015 U.S. Dist. LEXIS 153107, 2015 WL 7019768 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER

JESSE M. FURMAN, District Judge.

Suzanne and Lawrence McCarthy were divorced in 2012. As-part of-their divorce settlement, Lawrence agreed to pay their two daughters’ college tuition and other expenses and agreed to maintain life insurance policies that would pay a total of $4 million to Suzanne and their- daughters upon his death. Lawrencé did not live up to that agreement. Most significantly, after his- death in 2013, Suzanne and her daughters learned that Lawrence had only $50,000 of life insurance payable to-them. Making matters worse, they learned that, in the two years before his death,,he gave almost $360,000 to a girlfriend, Kateryna Zakharenko, and that he had another life insurance policy, with the Aetna Life Insurance Company (“Aetna”) for $500,000, but may have named Zakharenko as the beneficiary. In 'this suit, Suzanne and her daughters, Devon and Emma, seék a ruling that they are entitled to the proceeds of the Aetna policy, which have been deposited with the Clerk of Court. They, and Lawrence’s Estate (the “Estate”), a Defendant and Cross-Claimant, also contend that they .are entitled to money from Zakharenko on the grounds that the payments and transfers Lawrence made to and on her behalf qualify as constructively fraudulent transfers. The Court held a bench trial on September 30, 2015, and now issues this Opinion and Order setting forth its findings of fact and conclusions of law.

FINDINGS OF FACT

The following findings of fact are based on the evidence admitted at trial, including affidavits representing the direct testimony of Plaintiffs Suzanne McCarthy and Devon McCarthy, which are uncontested. (See Bench Trial Tr. (“Trial Tr”) 3-4; Order (Docket No. 90) 1; Pis.’ Proposed Findings Fact & Conclusions Law (Docket No. 92)). Suzanne and Lawrence (the “Decedent”) married in 1992. (Direct Test. Aff. Suzanne McCarthy (“SM Aff’) ¶ 6).- The couple had two children, Devon, who was born on February 11, 1994, and Plaintiff Emma McCarthy, who was born [281]*281on December 19, 1996. (Id. ¶ 7). On April 11, 2012, Suzanne and the Decedent divorced in the state of Florida. (Id. ¶ 8). In connection with the divorce, Suzanne and the Decedent entered into a Marital Settlement Agreement (the “MSA”), which was incorporated into the Florida Court’s Final Judgment of Dissolution. (Id. ¶ 10; Pis.’ Trial Ex. A (“MSA”)). The MSA required the Decedent to pay child support, college tuition (including room and board) for Devon and, Emma, and other college expenses. (SM Aff. 13; MSA 6-7). In addition, it set spousal support payments to Suzanne at $1 per month in recognition of the fact that the Decedent— who had been a stockbroker at Lehman Brothers until it went bankrupt in 2008— was unemployed at the time of the divorce. (See MSA 6; Direct Test. Aff. Devon McCarthy (“DM Aff.”) ¶¶ 6-7). In consideration of both that accommodation and waiver of any claim to additional assets from the Decedent, the MSA required the Decedent to maintain life insurance policies providing $4,000,000 in benefits, with Suzanne as a one-half beneficiary and their two daughters as one-quarter beneficiaries each. (SM Aff. 15; MSA 10). More specifically, the MSA required the Decedent to maintain three policies: a Liberty Mutual policy and two Mass Mutual policies. (SM Aff. 16; MSA 10).

Before Suzanne McCarthy and the Decedent were divorced, he began dating other women, including Defendant Zakharen-ko. (SM Aff. ¶ 32). As Plaintiffs later learned, he also began paying-various expenses on Zakharenko’s behalf and giving her other sums of money. First, according to credit card statements, the Decedent provided Zakharenko with a credit card and paid for $209,453.82 in expenditures from February 2011 through March 2013. (SM Aff. ¶¶ 33-35; DM Aff. ¶¶26-27; Pis.’ Trial Exs. E, F). Second, the Decedent made transfers to Zakharenko’s bank account totaling $75,652.01 from January 2012 to July 2013. (SM Aff. ¶¶41-44; DM Aff. ¶¶ 28-29; Exs. J, K, Q). And third, the Decedent paid Zakharenko’s rent for the years 2012 and 2013 — approximately $3,000 per month, or $72,000 overall. (SM Aff. ¶ 48; DM Aff. ¶ 30; Pls.’ Trial Ex. L). In total, the Decedent made approximately $357,105.83 in transfers to, or payments on behalf of, Zakharenko between 2011 and 2013. Zakharenko and the Decedent did not live- together, and no consideration was given by Zakharenko in exchange for those transfers' and payments. (SM Aff.47, 54).

Notably, during the time of these transfers to and payments on behalf of Zakhar-enko, the Decedent had significant outstanding liabilities. First, the Decedent owed $93, 196 to the State of New York pursuant to a consent to liability for tax years 2006-2009. (DM Aff. ¶ 38; Pis.’ Trial Ex. S). .With interest, that obligation grew to $163,108 by September 2014. (Id.). Second, at all relevant times, the Decedent was required by the MSA to maintain $4 million in life' insurance policies for the benefit of Plaintiffs. (MSA 10). Third, beginning in 2012, the Decedent became unable to pay for Devon’s college expenses, as required under the MSA. (DM Aff. ¶ 36; MSA 6). The Decedent borrowed $60,000 to cover those expenses, and Devon herself borrowed or paid approximately $50,000 to pay the remainder. (DM Aff. ¶ 36). Fourth, in April 2013, the Decedent was unable to pay an American Express bill for $93,228.67. (Pis.’ Trial Ex. H). The only significant arguable asset that the Decedent appears to have had during this time period was a contingent claim for $4,500,083.35 against Lehman Brothers Holdings, Inc. in its bankruptcy proceeding — $4,489,133.35 for compensation in the form of Restricted Stock Units (or “RSUs”) and $10,950 for stock options, both of which the Bankruptcy Court had [282]*282reclassified as highly subordinate “equity” interests. (DM Aff. ¶¶ 40-42; Pis.’ Trial Ex. T).

The Decedent died in December 2013. (SM Aff. ¶ 27). After his death, Plaintiffs attempted to collect the promised $4 million in life insurance. Plaintiffs discovered that, contrary to the terms of the MSA, the Liberty Mutual policy referenced in the MSA insured Suzanne McCarthy’s life, not the Decedent’s. (SM Aff. ¶ 20; Pis.’ Trial Ex. B). Plaintiffs also discovered that one of the Mass Mutual policies, providing for $2.9 million in benefits, had been allowed to lapse before the Decedent’s death. (SM Aff. ¶ 27; Pis.’ Trial Ex. D). Suzanne herself saved the other Mass Mutual policy from lapsing and Plaintiffs later received a $50,214.83 payment under that policy. (SM Aff. ¶ 26). Eventually, Plaintiffs learned that the Decedent had obtained a $500,000 life insurance policy from Aetna through a new employer, Cantor Fitzgerald. (SM Aff. ¶ 50). Although Cantor Fitzgerald’s records indicate that the Decedent designated Suzanne as the beneficiary of that policy (SM Aff. ¶ 57; Pis.’ Trial Ex. P), the Universal Enrollment Form filed with Aetna designated Zakharenko as primary beneficiary. (Pis.’ Trial Ex. M). Zakharenko gave no consideration in connection with the Aetna policy; indeed, she admitted that she did not even learn about the policy until months after the Decedent’s death. (SM Aff. ¶ 55; Pis.’ Trial Ex. O).

In light of the discrepancy between Cantor Fitzgerald’s records and the Universal Enrollment Form, Aetna refused to pay Plaintiffs the proceeds of the Aetna policy. Thus, Plaintiffs did not receive $3,949,785.17 of the $4,000,000 in death benefits promised to them in the MSA. (SM Aff. ¶ 31). In addition, the Decedent failed to make or provide for tuition and expense payments for Devon and Emma, as he was required to do under the terms of the MSA. (DM Aff. 1136).

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Bluebook (online)
145 F. Supp. 3d 278, 2015 U.S. Dist. LEXIS 153107, 2015 WL 7019768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarthy-v-estate-of-mccarthy-nysd-2015.