Lawsuit

87 So.3d 30 (2012) Michael WEYMOUTH, Appellant, v. Veronica WEYMOUTH, Appellee. Nos. 4D10-873, 4D10-2745. District Court of Appeal of Florida, Fourth District. April 11, 2012. Rehearing Denied May 21, 2012.   32*32 Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Howard S. Friedman of Fischler & Friedman, P.A., Fort Lauderdale, for appellant. Terrence P. O’Connor of Morgan, Carratt and O’Connor, P.A., Fort Lauderdale, for appellee.   TAYLOR, J.   The husband, Michael Weymouth, appeals a final judgment of dissolution and a final fee award. The wife, Veronica Weymouth, cross-appeals the final judgment of dissolution. We affirm in part, reverse in part, and remand for further proceedings.   I. Factual Background   The parties were married in 1993. Shortly before their marriage, the parties executed an Antenuptial Agreement prepared by the husband’s attorney. The Antenuptial Agreement contained a schedule of all the husband’s assets and liabilities prior to the execution of the agreement. Paragraph 3 of the Antenuptial Agreement provided that the wife would “hereby forever remise, release and quit claim all right, title and interest she might have or otherwise could have . . . to any property owned prior to marriage . . . by Michael and specifically waives any and all claim or claims which she might have in and to the real and personal property of Michael, owned prior to marriage. . . .” Paragraph 4 provided that all “property acquired by either of them during the marriage (other than property acquired by either of them by gift or inheritance)” is marital property. The Antenuptial Agreement did not, however, contain an express waiver of growth or appreciation of pre-marital or non-marital assets.   Paragraph 11 of the Antenuptial Agreement provided that the parties “specifically waive any claims against the other for alimony . . . unless the basis for the dissolution is adultery, physical abuse, mental or emotional abuse.” Furthermore, “[i]n the event of adultery, physical abuse, or mental or emotional abuse, either party shall be able to seek alimony and support from the other pursuant to Florida law; except that adultery or abuse may not be used against the party obligated to pay alimony or support.”   Before the marriage, the husband owned a Broward County house, which later became the marital residence. On the date the parties entered into the marriage, the fair market value of the home was $250,000, and the home was encumbered by a $160,000 mortgage. Between 1993 and 2006, the parties lived in the Broward County house, but the home remained titled in the husband’s name alone. Marital earnings were used to pay the house mortgage, insurances, real estate taxes and maintenance. In addition, substantial improvements 33*33 were made to the property during the marriage.   In 2003, the parties went to a marital counselor because of problems in the marriage. Nonetheless, the parties remained together at that time, and in the early summer of 2006, they began discussing a move to North Carolina. The husband testified that he was unhappy in the marriage and hoped that the move might resurrect the parties’ relationship.   Around the same time in 2006, the husband was terminated from his position at Hamway Flooring, and he returned to work for Hunter Crow Corporation, a general contracting firm that the Weymouths founded in 1997. The husband claimed that his income at Hunter Crow was significantly less than it was at Hamway.   In September 2006, the parties acquired a North Carolina home. The parties planned to move there at the end of their sons’ school year in May or June 2007. They planned to rent the Broward County house for a year and then sell it to pay for the North Carolina property if the move worked out.   Beginning in March 2007, the husband began having frequent contact, via phone calls and text messages, with a woman who was not his wife. Additionally, beginning in April 2007, the husband would sometimes leave the house after dinner and come home very late. By May 2007, the wife was aware of problems with the marriage. The husband told her that he no longer wanted to move to North Carolina. The wife asked him if there was another woman involved in his decision. The husband denied that there was and became upset at the wife for asking.   The parties’ relationship continued to get worse during the summer of 2007. In August 2007, the husband moved out of the house. In September 2007, the husband traveled to the Florida Keys with the “other woman.” Both the husband and the “other woman” testified that the September 2007 trip was the first time they had sexual relations with each other. The trial court, however, specifically found that their testimony on this point was not credible.   By October 2007, the wife was aware of the relationship with the mistress. Even so, the wife was willing to work on the marriage. But when she learned that the husband was planning another trip with the “other woman,” the wife decided to file for divorce. Although the husband pleaded with the wife to wait, the wife filed for divorce in November 2007.   During trial, the wife submitted evidence of her need based on her requested relocation to North Carolina. Furthermore, the wife’s forensic accountant testified regarding the husband’s income and assets.   At the conclusion of the trial, the court ordered the parties to submit written closing arguments and proposed final judgments. On the alimony issue, the husband’s Closing Argument argued:   (1) the Antenuptial precluded an alimony award; (2) the wife had not met her relocation burden; and (3) the wife should be awarded only $1,300 monthly, but at the most, her needs were $2,600 per month.   At a post-trial conference, the trial court advised the attorneys that it was having trouble determining the amount of alimony, explaining that there was no evidence of mortgage expenses for the wife if she moved from

296 S.W.3d 864 (2009) William JUREK Jr., Appellant, v Tawana COUCH-JUREK, Appellee. No. 08-08-00110-CV. Court of Appeals of Texas, El Paso. September 23, 2009.   867*867 Robert T. O’Donnell, Garland, TX, for Appellant. Rick Thompson, Hankinson Levinger LLP, Dallas, TX, for Appellee. Before CHEW, C.J., McCLURE, and RIVERA, JJ. OPINION   GUADALUPE RIVERA, Justice.   Appellee Tawana Couch-Jurek filed for divorce from Appellant William Jurek Jr. After a bench trial, a final decree of divorce was entered by the 254th District Court of Dallas County, Texas. William Jurek Jr. presents four issues on appeal. We find that the trial court properly admitted parol evidence relating to a premarital agreement between the parties and that the premarital agreement effected a constitutional exchange or bilateral partition of community interests in income from separate property. We find that the trial court committed harmless error by mischaracterizing rental properties purchased on credit during the marriage by Tawana, in that the loan agreements did not require the lenders to look solely to Tawana’s separate property for satisfaction of the debt. We find that William waived any claim he may have had under ERISA by failing to plead that affirmative defense. We affirm the trial court’s judgment.   FACTUAL AND PROCEDURAL BACKGROUND   William and Tawana were married on October 20, 1990 and Tawana filed for divorce February 24, 2006. The characterization and division of the marital estate was tried to the court. The trial court entered the final decree of divorce on December 25, 2007. On January 22, 2008, the trial court signed findings of fact and conclusions of law. On March 3, 2008, William filed his timely notice of appeal.   At trial no premarital agreement between the parties could be produced, and William denied ever having signed one. However, Tawana claimed, and the trial court found, that prior to their marriage in 1990, the parties did in fact enter into a premarital agreement. Further, the Court found that the premarital agreement between 868*868 William and Tawana was identical to a 1991 premarital agreement between Tawana’s sister, Juanita Couch, and her second husband. The 1991 premarital agreement was produced at trial.   The alleged 1990 premarital agreement, if identical to the 1991 premarital agreement, would establish that the parties agreed, among other things, that each party would retain “all rights, including profit and income” to his or her separate property, including any property acquired during the marriage, “as if no marriage had been consummated between them.”   Charles G. Clay was the attorney who prepared the 1991 premarital agreement, and he testified that he remembered preparing an agreement for Tawana in 1990 as well. He testified that the two premarital agreements were identical except for “the parties, the date, and the exhibits attached thereto.” Mr. Clay also testified to having prepared a third premarital agreement for Juanita in 1987. Mr. Clay’s testimony was admitted without objection and a copy of Juanita’s 1991 premarital agreement was admitted into evidence over William’s objection as to relevance. Juanita asserted that she had seen Tawana’s 1990 premarital agreement.   Mr. Clay retired from the practice of law some years prior to the present case and had since destroyed his records. As a result, he was unable to produce a copy of Tawana’s premarital agreement. Also, Jerlene Sawier, the notary public who witnessed and notarized the signing of the premarital agreement, passed away in 1992, and her record book could not be located.   Throughout the marriage, the behavior of both parties was consistent with there being the existence of a premarital agreement. Stephen Grissom, the CPA who prepared Tawana’s tax returns, testified that he met with Tawana and William soon after their marriage, and that William confirmed that he and Tawana had signed a premarital agreement. Grissom testified that William told him, “[w]e have an agreement–we have a marital property agreement that what’s hers is hers and mine is mine.” Grissom testified that throughout the marriage both parties filed income tax returns as “married filing separately” and reported their income from jobs and properties separately. Without a premarital agreement between Tawana and William, Grissom testified he would have had to file amended returns for a number of years. No objection was raised to Grissom’s testimony.   The couple maintained separate bank accounts. When purchasing new properties, they would submit only their own financial information to lenders. They each received title to new properties in his or her name only. William did not claim any “partial ownership” in any of the rental properties for which title was in Tawana’s name.   Tawana asserted that around the time it was signed her copy of the premarital agreement was placed in a file box marked “1991” in the attic, and that she never saw the premarital agreement again. When she searched for the agreement after filing for divorce, the box marked “1991” was missing from the attic. Tawana stated that she did not destroy the premarital agreement.   Based on this evidence, the trial court concluded that “there was a valid pre-nuptial agreement and [that the] parties did act in a course of conduct that supported its execution and existence throughout the 16 years of the marriage.” The court found that the premarital agreement between Tawana and William was in the same format, content, and wording as the premarital agreement prepared for Juanita in 1991.   During the marriage, Tawana acquired more than thirty rent houses, with title in 869*869 her name only. Tawana acquired the properties on credit from various lenders to whom she submitted only her financial data; however, there is no evidence that she received an agreement from the lenders to look solely to her separate property for satisfaction of the debt. During her marriage, Tawana received income from her separate property.   Prior to her marriage Tawana started a Southwest Airlines 401(K) Plan and a Southwest Airlines Co. Profit Sharing Plan, which grew in value during her marriage.   DISCUSSION   Premarital Agreement   In Issue

Michelle Galetta, Appellant, v Gary Galetta, Respondent. Francis C. Affronti, for appellant. Kathleen P. Reardon, for respondent.   Galetta v Galetta 2013 NY Slip Op 03871 Decided on May 30, 2013 Court of Appeals Graffeo, J. 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.   GRAFFEO, J.:   In this matrimonial action, plaintiff Michelle Galetta sought a determination that a prenuptial agreement she and defendant Gary Galetta signed was invalid due to a defective acknowledgment. Because we conclude that plaintiff was entitled to summary judgment [*2]declaring the agreement to be unenforceable under Domestic Relations Law § 236B(3), we reverse the order of the Appellate Division, which held there was a triable question of fact on that issue.   Michelle Galetta and Gary Galetta were married in July 1997. About a week before the wedding, they each separately signed a prenuptial agreement. Neither party was present when the other executed the document and the signatures were witnessed by different notaries public. The agreement had apparently been prepared by Gary’s attorney; Michelle elected not to be represented by counsel. In substance, the parties agreed that their separate property, as listed on attached addenda, would remain separate and not subject to equitable distribution in the event of dissolution of the marriage. They also decided that neither would seek maintenance from the other. It is undisputed that the signatures on the document are authentic and there is no claim that the agreement was procured through fraud or duress.   The parties’ signatures and the accompanying certificates of acknowledgment are set forth on a single page of the document. The certificates appear to have been typed at the same time, with spaces left blank for dates and signatures that were to be filled in by hand. The certificate of acknowledgment relating to Michelle’s signature contains the boilerplate language typical of the time. However, in the acknowledgment relating to Gary’s signature, a key phrase was omitted and, as a result, the certificate fails to indicate that the notary public confirmed the identity of the person executing the document or that the person was the individual described in the document. The record does not reveal how this error occurred and apparently no one noticed the omission until the issue was raised in this litigation.   In 2010, defendant husband filed for divorce. Plaintiff wife subsequently commenced this separate action seeking a divorce and a declaration that the prenuptial agreement was unenforceable. The wife moved for summary judgment on the request for declaratory relief, contending that the agreement was invalid because Domestic Relations Law § 236B(3) compels that prenuptial agreements be executed with the same formality as a recorded deed and the certificate of acknowledgment relating to the husband’s signature did not comport with Real Property Law requirements. The husband opposed the motion, asserting that the prenuptial agreement was enforceable because the language of the acknowledgment substantially complied with the Real Property Law. He submitted an affidavit from the notary public who had witnessed his signature in 1997 and executed the certificate of acknowledgment. The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband’s signature.   Supreme Court denied the wife’s motion for summary judgment, reasoning that the acknowledgment of the husband’s signature substantially complied with the requirements of [*3]the Real Property Law. In a divided decision, the Appellate Division affirmed the order denying summary judgment on a different rationale (96 AD3d 1565). The majority held that the certificate of acknowledgment was defective but determined that the deficiency could be cured after the fact and that the notary public affidavit raised a triable question of fact as to whether the prenuptial agreement had been properly acknowledged when it was signed in 1997. A two-justice dissent would have reversed and granted plaintiff summary judgment declaring the prenuptial agreement to be invalid because the acknowledgment was fatally defective. The dissent reasoned that the issue of whether a defect in an acknowledgment can be cured had not been preserved in the motion court but concluded, in any event, that such a deficiency cannot be cured, nor was the notary public’s affidavit sufficient to raise a question of fact if a cure had been possible. The Appellate Division granted defendant leave to appeal to this Court, certifying the question: “Was the Order of this Court…properly made?” Because plaintiff was entitled to summary judgment declaring the prenuptial agreement to be unenforceable, we answer that question in the negative.   Prenuptial agreements are addressed in Domestic Relations Law § 236B(3), which provides: “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.”   We interpreted this statute in Matisoff v Dobi (90 NY2d 127 [1997]), where we held that an unacknowledged postnuptial agreement was invalid. We observed that the statute recognizes no exception to the requirement that a nuptial agreement be executed in the same manner as a recorded deed and “that the requisite formality explicitly specified in DRL 236B(3) is essential” (id. at 132).   Real Property Law § 291, governing the recording of deeds, states that “[a] conveyance of real property…on being duly acknowledged by the person executing the same, or proved as required by this chapter,…may be recorded in the office of the clerk of the county where such real property is situated.” Thus, a deed may be recorded if it is either “duly acknowledged” or “proved” by use of a subscribing

The A/B Trust used to be one of the most popular estate planning products in a lawyer’s arsenal. Here’s how it previously worked: The first spouse dies and that spouse’s assets are placed into a trust using the first spouse’s estate tax exemption. The second spouse dies and their assets go to the children using the second spouse’s estate tax exemption. The assets in the first spouse’s trust then are passed to the children, thereby using both spouses estate tax exemption.   After years of this, the estate tax code was re-written combining the spouse’s exemptions making the A/B trust obsolete for this purpose. Some lawyers continue to use this method of estate planning even though it does some things poorly and others not at all. Although an A/B trust will pass the assets to the beneficiaries as good as other products, it has problems in the areas of privacy, asset protection, and Medicaid planning.   First, an A/B method of estate planning offers absolutely NO asset protection benefits while both spouses are alive and minimal protection after one spouse passes. In fact, if an attorney for a lawsuit checks a person who created an A/B trust for assets, they will see that they still own the assets in their name. While both spouses are alive, depending on how the lawyer drew up the estate plan, either each spouse has their assets in their own name with a will including a testamentary trust (a trust that doesn’t exist until death) or they each have their own revocable trust with half the marital assets.The A/B Trust used to be one of the most popular estate planning products in a lawyer’s arsenal. Here’s how it previously worked: The first spouse dies and that spouse’s assets are placed into a trust using the first spouse’s estate tax exemption. The second spouse dies and their assets go to the children using the second spouse’s estate tax exemption. The assets in the first spouse’s trust then are passed to the children, thereby using both spouses estate tax exemption.   Having assets in one’s own name or assets in a revocable trust doesn’t help for asset protection. In both scenarios, one has access to the assets, which means that one’s creditors can attach these assets as well as courts in the event of a lawsuit. After one spouse passes, the will creates an irrevocable trust or, alternatively, the revocable trust becomes irrevocable. The deceased spouse’s assets are now in an irrevocable trust and protected from creditors and the courts, but chances are that the prime years to get sued or go in debt happened a long time ago. Why not have an irrevocable trust in the first place?The A/B Trust used to be one of the most popular estate planning products in a lawyer’s arsenal. Here’s how it previously worked: The first spouse dies and that spouse’s assets are placed into a trust using the first spouse’s estate tax exemption. The second spouse dies and their assets go to the children using the second spouse’s estate tax exemption. The assets in the first spouse’s trust then are passed to the children, thereby using both spouses estate tax exemption.   An A/B trust also offers little protection from a Medicaid spend-down. Again, like above, while the spouses are alive, they will be subject to a Medicaid spend-down in order to qualify for long-term care benefits. The community spouse can keep a predetermined amount, but the rest will be spent down to a minimal amount ($1,500-2,000, depending on the state). Also, again, once one spouse dies, those assets are protected from the spend-down, but the other half of the assets are subject to the other spouses long-term care bills. An irrevocable trust would protect 100% of all of the assets.The A/B Trust used to be one of the most popular estate planning products in a lawyer’s arsenal. Here’s how it previously worked: The first spouse dies and that spouse’s assets are placed into a trust using the first spouse’s estate tax exemption. The second spouse dies and their assets go to the children using the second spouse’s estate tax exemption. The assets in the first spouse’s trust then are passed to the children, thereby using both spouses estate tax exemption.   An A/B trust doesn’t really do anything well. Instead of protecting half of the assets, a good irrevocable trust can protect all of the assets. The irrevocable trust takes all of the assets out of both spouse’s names so that they don’t own them anymore. If they don’t have title, the assets aren’t counted by Medicaid, aren’t included in the calculation for the estate tax, and cannot be found in a public record as being owned by you, thus they can’t be taken by creditors in the event of a lawsuit. In fact, if an attorney for a prospective lawsuit checks a person who created an irrevocable trust to hold assets, they won’t see any assets in your name and the lawyer probably won’t be interested in taking the case against you on a contingency basis. The lawsuit is stopped before it starts. There is a downside of an irrevocable trust; the persons creating it don’t have ownership of the assets past what they put in the trust documents. So, for the scared, there is the A/B trust and for the protected, the Ultra Trust irrevocable trust.The A/B Trust used to be one of the most popular estate planning products in a lawyer’s arsenal. Here’s how it previously worked: The first spouse dies and that spouse’s assets are placed into a trust using the first spouse’s estate tax exemption. The second spouse dies and their assets go to the children using the second spouse’s estate tax exemption. The assets in the first spouse’s trust then are passed to the children, thereby using both spouses estate tax exemption.