Opinion
Index No. 365525/2021
04-21-2023
A.K., Plaintiff, v. A.J., Defendant.
Counsel for Plaintiff Usher Law Group P.C By: Mikhail Usher, Esq.
Unpublished Opinion
Counsel for Plaintiff
Usher Law Group P.C
By: Mikhail Usher, Esq.
Ariel D. Chesler, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12 were read on this motion to/for ANNULMENT.
Upon the foregoing documents, it is
Plaintiff commenced this action for annulment by summons and complaint in November 2021. Defendant was personally served on December 8, 2021. He failed to answer the complaint or otherwise participate in this action. Plaintiff now moves for default judgment on her claim for annulment. The matter was set down for a hearing on.
At the hearing, Plaintiff and one other witness testified. The Court credits the testimony of both witnesses. According to Plaintiff, she first met Defendant in 2017 and they had a romantic relationship for a few months. In 2019, they got back together. The parties got engaged in April 2021 and had a civil marriage ceremony on May 5, 2021.
From the time she first met Defendant, Plaintiff was aware that he did not have permanent resident status in this country and was staying here on a student visa. Throughout their relationship they had many discussions about his immigration status, he was often angry about it, and she may have felt pressured to assist him with his status. Eventually, she asked him to get married. In hindsight she now feels like she was manipulated.
Plaintiff also described Defendant as being controlling, abusive, isolating her from family, and her need to engage in therapy. She also noted that he did not openly share their marriage with relatives and friends and was angry when she did so.
Once they got married, Defendant immediately asked Plaintiff to participate/sponsor his Green Card and to set up a joint bank account. Plaintiff in fact sponsored him but withdrew her sponsorship at some later point. Upon information and belief, Defendant is no longer in this country and there is no pending immigration application for him.
Separately, Plaintiff testified that long before they were married there were warning signs that he may have been unfaithful and had profiles on various dating apps. When she confronted him about these concerns, he made many excuses. In any event, she never thought he was cheating on her until the end of their relationship.
However, shortly after the marriage, Plaintiff was contacted by multiple people who let her know about his continued use of dating apps, including the witness who testified that Defendant "matched" with her on a dating app and had asked her on a date. This witness, who happened to be high school friend of Plaintiff, immediately advised Plaintiff about this incident.
In addition, Plaintiff personally observed Defendant's Apple Watch and saw that he had been texting other women in a sexually explicit manner. However, Defendant continually excused or denied any wrongdoing.
Ultimately, Plaintiff feels that Defendant did not in fact want to build a life together with her as he had promised, and wanted to use her solely to obtain a Green Card.
Although this matter proceeded to inquest and Defendant did not appear, Plaintiff had a significant burden of proof that was required to satisfy the trier of fact (see de Baillet-Latour v. de Baillet-Latour, 301 NY 428, 431, 434 [1950]). Specifically, "[c]ourts will not set aside a contract of marriage on the ground of fraud unless there be clear and convincing proof that there is fraud" (Vanderhorst v. Vanderhorst, 282 AD 312, 314 [1st Dept 1953]).
Where the consent of either spouse to a marriage was obtained by fraud, the marriage is voidable by way of an annulment action (see Domestic Relations Law §§ 7[4]; 140[e]; Travis A. v. Vilma B.,197 A.D.3d 1401 [3d Dept 2021]). "To obtain an annulment, the plaintiff spouse must prove that the defendant spouse knowingly made a material false representation to the plaintiff spouse with the intent of inducing the plaintiff spouse's consent to marriage, that the misrepresentation was of such a nature as to deceive an ordinarily prudent person, that the plaintiff spouse justifiably relied on the misrepresentation in consenting to marriage and that, once aware of the false representation, cohabitation ceased" (Travis A., 197 A.D.3d at 1402-03).
Here, there was no proof of a material misrepresentation that induced Plaintiff to marry. In fact, Plaintiff knew of Defendant's immigration status all along and she asked him to get married. Unlike the matter of Brillis v. Brillis (4 N.Y.2d 125, 127 [1958]), which involved the concealment of immigration status and a 3-day long relationship, Plaintiff here knew the Defendant for a significant period of time and was entirely aware of his immigration status.
To the extent Plaintiff relies on Defendant being unfaithful or not actually caring for her, "[p]remarital falsehoods as to love and affection are not enough" to warrant an annulment based upon fraud (Woronzoff-Daschkoff v. Woronzoff-Daschkoff, 303 NY 506, 512 [1952]; accord Avnery v. Avnery, 50 A.D.2d 806, 807 [2d Dept 1975]).
This matter is quite similar to the facts in Travis A., in which the Court found that the testimony of "false representations of love," and "premarital and marital discord" in fact "fell far short of demonstrating a fraudulent premarital intent on the part of the wife" (197 A.D.3d at 1403). There was insufficient evidence here to establish that Defendant had the intent to induce Plaintiff to marry with the sole purpose of obtaining an immigration benefit. As in Travis A., the discord and infidelity of Defendant cannot be solely attributed to a fraudulent premarital intent.
It is difficult to understand Plaintiff's choice to proceed on an annulment claim when our laws provide a much easier path for her to end her legal relationship with Defendant. Plaintiff's proof could certainly establish an irretrievable breakdown in the parties' relationship, and she is entitled to file for and obtain a divorce.
Accordingly, the motion for default judgment is denied and the action is hereby dismissed.