Opinion
No. xxxxx/2010.
2012-12-12
N.C., Plaintiff, v. M.C., Defendant.
Id. at 117. See, e.g., Augustin v. Augustin, 79 AD3d 651 [1st Dept.2010] [scheme to obtain a judgment of divorce by deceit].
CHARLES J. MARKEY, J.
+----------------------------------------------------------+ ¦Order to Show Cause ¦1¦ +--------------------------------------------------------+-¦ ¦Judgment of Divorce, by default, from the court in Haiti¦2¦ +----------------------------------------------------------+
According to the complaint, filed by attorney I.S. on behalf of Ms. N.C., the parties were married in Haiti in 1992 and there were no children of the marriage. The plaintiff signed a verification of the complaint on January 21, 2010, notarized by her attorney, Mr. S.
There are two different summonses with notice. In one summons with notice, Mr. S. warns the parties, inter alia, not to remove the children of the marriage from any medical, hospital, or dental plan.
This version of the opinion, submitted for online publication, eliminates and redacts any personal information in this matrimonial action, especially since children are involved.
The divorce action had been assigned to the undersigned Judge as an uncontested matrimonial not involving children. The Matrimonial Clerk's Office made the assignment as such since the Complaint filed by Mr. S., signed by him, and verified by his client stated: “There are no children of the marriage.” The plaintiff, N.C., in her own affidavit, stated: “There are no children of the marriage: Not Applicable.” Her affidavit was signed and notarized on September 14, 2010, and the notary was her attorney I.S. The Findings of Fact also recited: “There are no children of this marriage.” These repeated statements turned out to be false.
The defendant-husband did not appear in the early proceedings, and the plaintiff submitted an affidavit of service attesting to the service upon him of the papers. This Court thus was of the opinion that the defendant had been served and defaulted.
Mr. S., plaintiff's counsel, filed an order to show cause to place this action on the calendar. The Court's examination of the proposed order to show cause revealed that the purpose was to determine the defendant-husband's rights in the marital home. Upon further examination of the underlying divorce action and the supporting papers, the undersigned issued a decision dated August 24, 2011, and entered on September 9, 2011, vacating the judgment of divorce that had been issued in January, 2011, upon realizing that certain documents had not been filed with the divorce action. The decision referred to the signing of the order to show cause and required all parties to appear before the Court on October 14, 2011.
On October 14, 2011, the Court held a conference, attended by both parties and their counsel, treating the order to show cause as a post-judgment request for equitable distribution. Instead, the conference held by this Court yielded several astonishing surprises and unexpected disclosures. First, questioning the parties, the Court learned that plaintiff's claim that there were no children of the marriage was false. The parties have two children, R.C., born on August x, 19xx, and S.C., born on February xx, 19xx. Both are still unemancipated minors. The failure to disclose their existence in the papers filed in 2010 with this Court, seeking a divorce, was wrong.
The Court showed plaintiff's verification of the complaint to her, but received no satisfactory answer for the misrepresentation to the Court that there were no children of the marriage. Instead, it appeared that the plaintiff and her counsel were pointing the finger at each other. Plaintiff's counsel then admitted to the Court that he had work sheets showing that there were children of the marriage.
Then, at the October 14, 2011 conference, the plaintiff's counsel furnished the Court with a document showing that plaintiff procured a default judgment of divorce in April, 2009, from the Haitian courts. The defendant-husband maintained at the hearing before this Court, on October 14, 2011, that he had not known of this default judgment of divorce.
At the hearing on October 14, 2011, the newly retained defense counsel expressed her indignation at the way the original judgment, since vacated, had been procured, and the waste of her time in attending the hearing on the order to show cause. She requested orally an award of counsel fees for her client.
Justice Henry A. Hudson, in Mestrovic v. Mestrovic, 133 N.Y.S.2d 112 [Sup Ct Onondaga County 1953] [not officially reported], vacated an annulment where it had been procured by false statements that were made to the Official Referee. In Mestrovic v. Mestrovic, a case that has not been cited yet by any officially reported case, Justice Hudson stated eloquently:
[I]n the case of matrimonial actions ... the withholding of information from the court which, if disclosed, might cause the court to take a different view of the facts, is as much a fraud upon the court as actual misstatements of fact and in matrimonial actions, the People of the State of New York have an interest as a matter of public policy in addition to the rights of the plaintiff and defendant as between themselves.
Id. at 117. See, e.g., Augustin v. Augustin, 79 AD3d 651 [1st Dept.2010] [scheme to obtain a judgment of divorce by deceit].
In Queens County, the distribution and assignment of uncontested matrimonial actions is made on the strength of the parties' representation as to whether or not there are any unemancipated children of the marriage. Cases involving unemancipated children are assigned to certain matrimonial parts and are subject to stringent review to protect the rights of the children. Child support is an issue that the New York courts fiercely guard. See, e.g., Solly M. v. Audrey S., 32 Misc.3d 541 [Sup Ct Queens County 2011] [judicial consent without finalization of adoption did not extinguish parent's obligation to pay for child support]. Regarding a court's obligation as “parens patriae” to protect a child on issues of child support, see the discussion in Spoor v. Spoor, 276 A.D.2d 887, 889–890 [3rd Dept.2000]; Laura G. v. Peter G., 15 Misc.3d 164, 167 [Sup Ct Delaware County 2007]; South Carolina Dept. of Social Servs. v. James C.D., 119 Misc.2d 649, 654 [NYC Family Ct Kings County 1983]; accord, J.L. v. E.L., 28 Misc.3d 1229(A), 2010 WL 3447665, 2010 N.Y. Slip Op 51552(U) [Family Ct Onondaga County 2010]; Werther v. Werther, 9 Misc.3d 1114(A), 2005 WL 2384722, 2005 N.Y. Slip Op 51543(U) [Sup Ct Nassau County 2005].
In the present action, several false statements were made to the Supreme Court, failing to disclose the existence of unemancipated children of the marriage. Both the plaintiff and her counsel had ample time to review documents without attesting falsely on several documents that there were no such children.
The parties to the divorce action actually had children born of the marriage, but misrepresented to the Court, through either intentional fraud or inexcusable recklessness, that there were no children of the marriage.
The Court has a vital stake at preserving the sanctity of honesty in disclosure in matrimonial actions filed with the Court—regardless of whether filed by counsel or parties acting pro se. The Court thus has a keen need to address whether or not any consequences should flow from dishonest disclosure.
Since the State of New York has approved of “no fault” divorces (Domestic Relations Law § 170[7], discussed in Granger v. Granger, 31 Misc.3d 1210(A), 2011 WL 1380205, 2011 N.Y. Slip Op 50560(U) [Sup Ct Queens County 2011] [decision by the undersigned] ), it is even more important to require the litigants, upon filing matrimonial papers with the Matrimonial Clerk of the Court, to be truthful in essential disclosures, such as the existence of unemancipated children who may need a court-directed provision ordering child support.
Justice Henry A. Hudson got it right in Mestrovic v. Mestrovic, 133 N.Y.S.2d 112,supra, when he stated that the People of this State have a vital interest in honest disclosures in matrimonial papers. Unless a court is aware of the existence of unemancipated children, and makes financial provision for their care, allocating the economic responsibility between the parties to the matrimonial action, it is the People who will have to shoulder the expenses in financial assistance and welfare payments.
In the present action, this Court previously vacated the Judgment of Divorce. This Court denies the plaintiff-wife's order to show cause. In light of the fraud practiced, either intentionally or recklessly, the Court now dismisses the matrimonial proceeding, with leave to file new papers, to be completed honestly, under a new index number, and those new papers shall disclose the attempt by the plaintiff to obtain a judgment of divorce from the courts in Haiti and from the undersigned. The Court expresses no opinion on the validity of the Haitian judgment of divorce.
This Court lifts and vacates all prior stays and restraints.
The foregoing constitutes the decision, order, and opinion of the Court.