Order, Supreme Court, New York County (Marian Lewis, Special Referee), entered March 29, 2006, which denied plaintiff's application to set aside a prenuptial agreement, and determined that agreement to be valid and enforceable, affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Saxe, Buckley, McGuire, JJ.
Plaintiff, an American citizen who married defendant, a German citizen, in 1975, seeks to set aside a prenuptial agreement executed by the parties in Germany shortly before they wed. The agreement, in accordance with German law, provides for a "separation of property" regime, i.e., it requires that each spouse retain ownership of all property held at the time of the marriage or acquired thereafter.
The evidence, as credited by the Special Referee, established that the agreement was signed on December 19, 1974 in the presence of an official representative of a German "notar," a neutral official who explained the agreement, which was written in German, and its consequences prior to its execution. After hearing the testimony and observing the witnesses, the Special Referee found that the notar's representative was a "very credible witness." Accordingly, she credited his testimony that he spoke English fluently in 1974, was able to converse with plaintiff in both German and English and explained the agreement to her in English. Additionally, he testified that when he met with the parties he determined that they understood the language as well as the contents and consequences of the agreement and he would not have proceeded with the execution if it appeared otherwise.
Plaintiff, who was 22 years old and a graduate student at New York University at the time she executed the agreement, asserts that she did not understand the agreement or its consequences, but admits that she signed it voluntarily. She did not show any signs of duress during the execution of the agreement and did not ask the notar's representative any questions about the agreement. Furthermore, despite her asserted lack of understanding, she acted in accordance with the terms of the agreement throughout the marriage, maintaining separate bank accounts in her own name in which she deposited income from properties she inherited from her family, which properties were themselves also retained by plaintiff solely in her name.
"[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Thoreson v Penthouse Intl., 80 NY2d 490, 495  [internal quotation marks omitted]). It cannot be said that the Special Referee's conclusions were not based on a fair interpretation of the evidence, and there is thus no basis for reversal. The agreement is fair, neutral and valid on its face and the issue determined by the Special Referee was therefore solely one of credibility.
Furthermore, the public policy of this State favors " individuals ordering and deciding their own interests through contractual arrangements'" (Van Kipnis v Van Kipnis, __ AD3d __, 2007 NY Slip Op 06074, *5 [July 12, 2007], quoting Bloomfield v Bloomfield, 97 NY2d 188, 193 ), and thus, duly executed prenuptial agreements, including agreements executed in a foreign country, are accorded the same presumption of legality as any other contract (see Greschler v Greschler, 51 NY2d 368 ). A party attacking the validity of the agreement has the burden of coming forward with evidence showing fraud, which will not be presumed, and must have as its basis evidence of overreaching - the concealment of facts, misrepresentation or some other form of deception (see Matter of Sunshine, 51 AD2d 326 , affd 40 NY2d 875 ). Plaintiff completely failed to meet that burden.
The numerous circumstances cited by plaintiff as irregularities, including her alleged lack of fluency in the German language, defendant's superior education, the fact that she was unrepresented by counsel and that the agreement was written by a law firm that had previously done business with defendant's family, do not establish overreaching on defendant's part, especially in view of the uncontradicted testimony that the agreement was explained to plaintiff in English. In reaching the opposite conclusion, the dissent adopts a highly skewed version of the facts in the course of portraying plaintiff as a naive individual who was the victim of elaborate "machinations" that were calculated to induce her to sign an agreement she did not understand. However, at the time the agreement was executed, plaintiff had received her B.A. from a prestigious university, New York University (where she took such courses as "International Law," "Ideas & Action I: Law in Society," "International Politics" and "US Foreign Policy") and was pursuing a master's degree in political science from that same university.
The dissent not only understates plaintiff's sophistication, knowledge and intellect, it attempts to transform a simple document - drafted from Germany's equivalent of a Blumberg form - that employs a common property concept into a highly complex legal document. Contrary to the dissent's assertion, the concept of the separate property regime is not a difficult one to understand. Because complexities can arise, it hardly follows that the basic concept is abstruse. In short, the evidence amply supports the Special Referee's conclusion that plaintiff is properly charged with knowledge of the agreement's contents (see Stein-Sapir v Stein-Sapir, 52 AD2d 115 ).
In Stein-Sapir, the defendant husband sought to set aside a prenuptial agreement that was written in Spanish, a language he did not speak, and was executed in Mexico immediately prior to the marriage ceremony. Although neither party spoke Spanish, the law of the State of Guerrero, where the parties were married, required that they present an agreement with respect to property they presently owned as well as property that might be acquired during the marriage. Mexican law further required that a civil official "carefully explain to the parties all that they may need to know to the effect that the agreement may be duly drawn up" (id. at 117). The plaintiff wife testified that the agreement was fully explained in English; the defendant husband, an attorney and Fulbright scholar, denied that any such explanation had been given but admitted that the signatures on the document looked like his signature and that of the plaintiff.
This Court upheld the agreement in Stein-Sapir, finding that if defendant "did not read or understand the agreement, or have any explanation of the same, his conduct evidenced a degree of carelessness or negligence not to be expected of a sophisticated and mentally brilliant person" (id.). One need not be an attorney or a Fulbright scholar to know the folly of signing a legal document without an understanding of its import. As the dissent acknowledges, plaintiff was "a bright, intelligent young woman" at the time she signed the agreement. Accordingly, her claimed ignorance of the meaning of the document she concededly signed without protest is incredible.*fn1
The dissent criticizes the notar's representative, asserting that he was an inexperienced apprentice who did not have any customary practices at the time of the execution of the agreement. This assertion ignores the testimony that the notar's representative began working with and observing his mentor, an attorney and notar, in the autumn of 1972, assisted with or observed more than 300 notarial transactions and handled six or seven transactions on his own during the two years prior to the execution of the agreement. Based on this testimony, the Special Referee properly relied on the notar's representative's description of his customary practices (see Halloran v Virginia Chems., 41 NY2d 386 ).
As the Special Referee noted, plaintiff's only potentially viable claim is one for fraud based on her assertion that she was told that the purpose of the agreement was to protect defendant in the event of bankruptcy. However, plaintiff admitted that she could not identify the person who allegedly provided this explanation and the Special Referee did not credit plaintiff's testimony in this regard. Furthermore, the Special Referee made a specific finding on this subject, crediting defendant's testimony that he did not provide that explanation to plaintiff. Not surprisingly, plaintiff has abandoned this argument on appeal. Accordingly, the dissent's reliance on this alleged statement in support of the position that plaintiff was the victim of fraud or overreaching is misplaced.
Although the dissent essentially accepts plaintiff's version of the relevant facts, the Special Referee clearly did not credit plaintiff's version of the facts. Consistent with its approach, the dissent writes that plaintiff "in fact was entirely unaware of the purpose of the visit prior to arriving at the lawyers' office" in Frankfurt, Germany. As the Special Referee stated, however, "[t]he most credible scenario is that defendant did discuss the execution of the separation of property document with plaintiff's father, as she requested, and it was plaintiff's father . . . who did not object, and advised his daughter that at some point, she would be signing a document that had something to do with bankruptcy.'" As the Special Referee immediately went on to observe, moreover, "[b]ut even if this is not what occurred, if plaintiff did not understand the document, she should not have signed it."
We have considered plaintiff's remaining contentions and find them unavailing.
All concur except Saxe, J. who dissents in a memorandum as follows:
In December of 1974, an affianced young American woman in the bloom of love, traveling with her German fiancÉ; to his parents' home in Frankfurt, en route to a skiing vacation in Switzerland, experienced a sudden and unexpected detour to a lawyer's office in Frankfurt, where she was presented with a prenuptial agreement. Her execution of that document, and its enforceability, form the basis for this appeal.
The Special Referee, who was requested to hear and determine the controversy, held that the agreement is enforceable, and the majority agrees. However, in my view, the confluence of various questionable practices and procedural irregularities surrounding the execution of the agreement makes this the exceptional case in which an antenuptial agreement should be set aside. The evidence establishes that plaintiff's signature was obtained through a combination of deception and overreaching, causing an unknowing waiver of unexplained rights. Accordingly, I dissent.
Plaintiff wife and defendant husband are children of Holocaust survivors; the parents met in a displaced persons camp outside Frankfurt, Germany after World War II, and ultimately settled there. Plaintiff's family moved to the United States 31/2; years later, and settled in New York City, where plaintiff was born. Defendant's family remained in Germany. He was educated in England beginning at age 10 and received a law degree from Birmingham University in England. After briefly meeting at a dance in Frankfurt in the 1960s when she was 12 and he was 14, plaintiff and defendant met again in 1971, when she was 19 and an undergraduate at New York University and he was 21 and studying for a Masters Degree in International Law at the same university. They became engaged in the summer of 1974 and married in 1975.
In December 1974, the affianced couple traveled together from New York to Frankfurt, where defendant's parents lived, in anticipation of a winter ski vacation. Upon their arrival in Germany, defendant told plaintiff that before they left for Switzerland, it was necessary for both of them to attend a meeting with a lawyer. The parties dispute the exact explanation provided to plaintiff as to the need for this meeting; she testified that the reason defendant gave her was the necessity of "signing a piece of paper for bankruptcy." Plaintiff also testified that she and defendant had no prior discussions regarding the signing of any agreement having to do with their marital or property rights. For his part, defendant testified that he brought up the subject of a premarital ...