Recitation as required by C.P.L.R. 2219(a), of the papers considered in the review of Defendant's Order to Show Cause requesting an inquest, to incorporate by reference within the divorce decree all of the custodial and financial terms of the parties' July 1, 2010 and July 15, 2010 settlement agreements, and directing that plaintiff immediately vacate the parties' summer residence located at 132 Lincoln Ave, Avon, NJ.

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PapersNumbered

Defendant's Order to Show Cause and Exhibits:1-14, 1-7

Plaintiff's Affidavit in Opposition and Exhibits:1-20, 1-14

Defendant's Reply Affirmation:1-13

In this action for divorce and ancillary relief, defendant-husband seeks an order setting the matter down for inquest, incorporating by reference within the divorce decree all of the custodial and financial terms of the parties' July 1, 2010 and July 15, 2010 settlement agreements, and directing that plaintiff-wife immediately vacate the parties' summer residence located at 132 Lincoln Ave, Avon, NJ. Plaintiff-wife opposes. [*2]

On July 1, 2010, the parties signed a letter agreement (hereinafter "Letter Agreement") which provided that they "agree to resolve the material terms relating to maintenance, equitable distribution, payment of counsel fees, child support, and major custodial issues with respect to their children . . . as follows." Following that, the Letter Agreement consists of five pages, each initialed at the bottom, with separate headings for custody and access, equitable distribution, maintenance, child support, bonus, and legal fees. Both parties were represented by counsel and all signed the document, along with two witnesses. The Letter Agreement was also acknowledged.

The parties then executed a second letter agreement on July 15, 2010 (hereinafter "Second Agreement"), in that Mr. C. provide Ms. C. an advance against equitable distribution in the amount of $200,000 for the purpose of enabling "Ms. C. to secure a rental apartment in compliance with the terms set forth in the parties' letter agreement dated July 1, 2010." The Second Agreement is also signed, witnessed, and acknowledged. Mr. C. provides that he paid the $200,000 advance pursuant to the terms of the Second Agreement on July 19, 2010.

Mr. C. seeks an inquest to obtain final dissolution of the marriage, to incorporate by reference within the divorce decree all of the custodial and financial terms of the Letter Agreement and the Second Agreement, and directing plaintiff to immediately vacate the parties' summer residence located at 132 Lincoln Ave, Avon, NJ. He provides that the July 1st agreement, under the subheading "132 Lincoln Avenue, Avon, NJ (the Summer Residence')," unambiguously states that "the parties agree that the fair market value of the Summer Residence is approximately $800,000. Mr. C. shall retain this residence and make a distributive award to Ms. C. in the amount of $198,500." By letter dated June 1, 2011, he avers that he is ready and able to make the distributive payment due, upon Ms. C.'s execution of a deed and other transfer documents, and vacatur of the residence. He alleges that she is in violation of the Letter Agreement by residing in the house.

Mr. C. asserts that the Letter Agreement resolves virtually all the major issues between the parties, and that any ancillary issues may be determined at inquest or, alternatively, should be bifurcated and adjudicated separately. He provides that while the parties identified with specificity the identity of their assets to be distributed upon divorce, the valuation date of certain assets and the mechanics of their distribution remain subject to further agreement or "as a Court may fix." He also provides that while custody and access has been resolved pursuant to the Letter Agreement, there is no formal holiday and summer access schedule in place. The Letter Agreement stipulates that this issue is to be "determined by further agreement between the parties or determination of a Court with competent jurisdiction."

He also claims that the absence of certain recitals required by the Child Support Standards Act does not invalidate the remaining portions of the agreement. Mr. C. claims that the child support provisions are not intertwined with the remaining terms of the Letter Agreement, and argues that the child support terms should be upheld since Ms. C. ratified the Letter Agreement in whole by executing the Second Agreement, accepting the $200,000 advance, signing the documents necessary to sell the former marital residence, exercising exclusive use and occupancy of the parties' minivan, and accepting the monthly child support and spousal [*3]support payments.^[FN1]

Ms. C. opposes, alleging that the Letter Agreement is merely a term sheet and is incomplete, vague, and ambiguous, and cannot be incorporated into a judgment of divorce. She claims the child support provision is unenforceable since it did not contain the requisite CSSA language, and that other omissions render the remainder of the Letter Agreement unenforceable. Specifically, she claims that the Letter Agreement does not dispose of the parties' mortgage liability on the Summer Residence, that the setting of a valuation date of the parties' bank accounts and retirement is complicated and cannot simply be done at an inquest, and the Letter Agreement does not contain the requisite health insurance language as required by Domestic Relations Law � 255. She asserts that vacation and holiday access schedules with the parties' children still need to be set. Furthermore, despite a provision in the agreement providing that the parties shall "jointly decide major issues" relating to the children, she provides a litany of potential decision making issues regarding the children that should be comprehensively resolved. Hence, she argues that the omission of these material terms evinces an intent between the parties that this merely was an agreement to agree, and as such the Letter Agreement is unenforceable.

Ms. C. also alleges that her husband abandoned the Letter Agreement by not complying with its terms. She alleges that he has failed to follow the parenting access schedule as set forth, as he has failed to exercise his parenting time on Mondays and Tuesdays, and has only spent alternate weekends (Thursday through Sunday) with the children. She also claims Mr. C. allowed her to stay in the Summer Residence this summer, and subsequently offered to modify the provision allowing him to retain the Summer Residence. Though no agreement was entered into modifying that provision, she claims that in reliance upon that offer, she incurred a $50,000 loan to finance a boardwalk business near the Summer Residence so she would not have to travel into New York City for work while the children were with her. She also asserts that subsequent negotiations between the parties to produce a more detailed separation agreement show that the Letter Agreement was merely meant to be a term sheet.

Regarding ratification, Ms. C. denies that she accepted benefits in reliance of the Letter Agreement. She provides that Mr. C. only began paying child support and spousal support in accordance with the Letter Agreement as of June 2011, which she specifically accepted "without prejudice to either party's claim as to the purpose of such payment." Prior to receiving such payments, Ms. C. claims that he merely retained the status quo. She also asserts that the $200,000 advance given to her in accordance with the Second Agreement was not a ratification of the Letter Agreement, and that the Second Agreement did not reaffirm the Letter Agreement. [*4]Finally, she argues that she has not exercised exclusive use and possession of the parties' minivan pursuant to the Letter Agreement, but rather claims it is still jointly owned. In support of this, she annexes e-mails from Mr. C. requesting use of the minivan following the execution of the Letter Agreement.

Her final argument is that her assent to two sections of the Letter Agreement were procured by false and misleading statements by Mr. C.. She alleges that the relocation provision was added at the last minute, and that he misled her about the likelihood of his receiving a bonus in 2010. The Letter Agreement provided that Ms. C. released "any and all claims to any bonus or deferred compensation that may be awarded and/or paid to Mr. C. after the date of execution of this Letter Agreement." As of the date of this agreement, Mr. C. acknowledges that he has no agreement with his current employer regarding whether a bonus or deferred compensation will be awarded or paid to him for work performed in 2010. Ms. C. avers that Mr. C. told her he would not be receiving a bonus, but did receive a bonus for work performed during the marriage in 2009.

In his reply, Mr. C. argues that simply because the Letter Agreement remains subject to future undefined conditions does not make it too vague to be enforceable. He asserts that the parties specifically identified the subject matter of the Letter Agreement, including specific accounts and assets subject to equitable distribution. He claims that even though the mortgage on the Summer Residence was not specifically referenced in the Letter Agreement, it clearly states that he is to retain the Summer Residence, and that it follows logically that in doing so he would also retain the property's accompanying mortgage.

Regarding custody and visitation, he provides that simply because the Letter Agreement left vacation and holiday access unresolved does not diminish the validity of the other terms. Further, the Letter Agreement allows for joint decision making on major issues, and he claims that simply because the decision making agreement does not specifically spell out the precise mechanism for resolving the panoply of potential decisions that were proposed by Ms. C. in her opposition similarly does not diminish the Letter Agreement's validity.

Finally, he provides that any offer made in addition, revision, or modification of the Letter Agreement was simply that— an offer. No further agreements were made following the Second Agreement, and any negotiations after that were non-binding offers for settlement purposes only.

As a threshold issue, DRL � 236(B)(3) provides that "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." Here, both the Letter Agreement and the Second Agreement conform to the requirements of DRL � 236(B)(3).

"There is a heavy presumption that the deliberately prepared and executed postnuptial agreement manifest[s] the true intention of the parties'" (Kojovic v Goldman, 35 AD3d 65, 71 [1st Dept 2006], lv denied 8 NY3d 804 [2007],quoting Haynes v Haynes, 200 AD2d 457, 457 [1st Dept], affd 83 NY2d 954 [1994]). Further, "[a] separation agreement is a contract subject to the principles of contract construction and interpretation" (Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990]). A fundamental rule of contract interpretation is that "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the [*5]plain meaning of its terms" without reference to extrinsic evidence (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]; see also W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

It is well settled that "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable." Bernstein v. Felske, 143 AD2d 863 (2d Dept. 1988). However, "a contract does not necessarily lack all effect merely because it expresses the idea that something is left to future agreement." Four Season Hotel Limited v. Vinnik, 127 AD2d 310 (1st Dept. 1987). The Court shall enforce a contract if the parties have completed negotiations of essential elements, even when "the parties have expressly left these other elements for future negotiation and agreement." Id., at 318. Furthermore, when a letter agreement contains the essential terms of the contract, "the fact that the parties intended to negotiate a fuller agreement' does not negate its legal effect."Concopco, Inc. v. Wathne Limited, 190 AD2d 587 (1st Dept. 1993).

The Letter Agreement explicitly states at the outset that the parties "agree to resolve the material terms" relating to the divorce. Despite that, Ms. C. alleges indefiniteness in the Letter Agreement. However, the indefiniteness lies precisely in the parties' intention to resolve details like holiday and vacation schedules, not the essential elements. The parties specifically agreed to joint custody, joint decision making for major issues, and worked out a weekly access schedule with the children. The fact that they explicitly left holiday and vacation schedules open to be determined by further agreement, along with "other details relating to the legal custody" does not invalidate the entirety of the agreement for indefiniteness. Similarly, regarding equitable distribution, the parties outlined their accounts and assets, agreed to a division of them, leaving open only a valuation date to either be agreed upon or set by the Court. Whether setting a valuation date will be complicated or not, there is an objective mechanism in place in the Letter Agreement to determine a date if the parties cannot agree. The only issue not explicitly dealt with was the mortgage on the Summer Residence, as it was merely provided that Mr. C. "shall retain this residence." However, this is not enough to invalidate this agreement.

Regarding Ms. C.'s claim of abandonment, it is well settled that "contractual rights may be waived if they are knowingly, voluntarily, and intentionally abandoned." Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Management, L.P., 7 NY3d 96 (2006). Proof of abandonment "may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage." General Motors Acceptance Corp. v. Clifton-Fine Cent. School Dist., 85 NY2d 232 (1995). In order to release a contract or contractual provision, there must be a "clear manifestation of intent," and a waiver "should not be lightly presumed." Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988).

Ms. C. alleges that Mr. C. abandoned the contract by offering to modify the provision allowing him to retain the Summer Residence, and by declining to exercise his fully allotted access time with the parties' children. She also claims he allowed her to reside in the Summer Residence from June through the end of August, 2011. However, neither action manifests an intent on the part of Mr. C. to abandon the Letter Agreement. Furthermore, letters from his attorneys to her counsel dated May 23, 2011 and June 1, 2011 provide that Ms. C.'s use of the Summer Residence was in violation of the Letter Agreement and without Mr. C.'s consent. In addition, any offer made by Mr. C. to modify the Letter Agreement so as to allow her to retain [*6]the Summer Residence was made to facilitate settlement and may not be used in litigation. See Crow-Crimmins-Wolf & Munier v. County of Westchester, 126 AD2d 696 (2d Dept 1987).

Ms. C. claims that she detrimentally changed her position in reliance upon plaintiff's offer for her to live in the Summer Residence through the end of August by taking out a $50,000 loan to open a business for the summer. "An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury." Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175 (1982). Here, the words of Mr. C. were merely an offer to modify a presently executed agreement. Furthermore, as August 2011 is already over, there is no injury to Ms. C., and there is no estoppel.

Regarding the child support provision, it is evident that the Letter Agreement does not contain the requisite CSSA language in accordance with DRL � 240 (1-b)(h), and the child support provision of the Letter Agreement is invalid. However, the appropriate remedy here is to "vacate only those provisions of the stipulation relating to child support, not to vacate the entire stipulation." Toussaint v. Toussaint, 270 AD2d 338, (2d Dept. 2000).

Mr. C. argues that the child support provision, along with the Letter Agreement as a whole, are valid because Ms. C. has ratified it. For an agreement to be ratified, a party must have "acquiesced in the agreement and received the benefits under it for a considerable period of time." Anonymous v. Anonymous, 137 AD2d 739 (2d Dept. 1988). However, the child support provision here lacks the requisite language and cannot be waived. See DRL � 240 (1-b)(h). While the Letter Agreement and Second Agreement were signed just over one year ago, Ms. C. has not received benefits under it for a considerable period of time. Support payments under the Letter Agreement only began in June, 2011, which Ms. C. explicitly accepted without prejudice to either party's claim as to the purpose of such payment. Furthermore, other than the $200,000 advance against equitable distribution received by Ms. C., the distribution of the parties' assets in accordance with the Letter Agreement has not begun. The Second Agreement did not ratify the Letter Agreement either, as it provided for an advance against equitable distribution for her living needs to "secure a rental apartment in compliance with the terms set forth in the parties' letter agreement." The Second Agreement did not modify any portions of the Letter Agreement, nor did it specifically reaffirm it.

While the Letter Agreement is a valid postnuptial agreement, at this time it cannot be incorporated within the divorce decree, and the matter cannot be set down for an inquest. As this action was filed under the no-fault statute, DRL � 170(7), the Court is constrained from entering a judgment of divorce "until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the Court and incorporated into the judgment of divorce." These issues are not yet fully resolved, and cannot be determined by the Court at this time.

Mr. C. also moves to direct plaintiff to vacate the parties' Summer Residence immediately. While the Letter Agreement provides that he is to retain the Summer Residence, there is no date set for when the Letter Agreement is to take effect. Furthermore, though he claims he is ready and able to pay the $198,500 distributive award to Ms. C. in exchange for the Summer Residence, such payment has not been made yet, and there is no mechanism in place in [*7]the Letter Agreement for when the exchange of the property for the distribution is to take place.

Finally, Ms. C. alleges that her assent to the agreements was procured by false and misleading statements. The Court notes that the parties have been represented by counsel of their choice at all times throughout the negotiations of the agreements and the pendency of this litigation.

Based on the foregoing, it is hereby

ORDERED, that defendant's request to set the matter down for divorce inquest is denied, and it is further

ORDERED, that defendant's request to incorporate by reference within the divorce decree all of the terms of the parties July 1, 2010 and July 15, 2010 settlement agreements is denied at this time, and it is further

ORDERED, that defendant's request directing plaintiff to immediately vacate the parties' Summer Residence is denied, and it is further

ORDERED that counsel for the defendant shall serve the within Decision upon counsel for the plaintiff, with notice of entry, within ten (10) days of entry.

This constitutes the Decision and Order of the Court.

ENTER:

__________________________

HON. DEBORAH A. KAPLAN

J. S. C.