Opinion
XXXXX/XXXX
04-26-2017
J.G., Plaintiff, v. K.V.-G.,, Defendant.
The following papers numbered 1 to 14 read herein:
Papers Numbered
Notice of Motion/Order to Show Cause/Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1-4 Opposing Affidavits (Affirmations) 5-8 Reply Affidavits (Affirmations) 9 Supplemental Submission by Plaintiff 10 Supplemental Affirmation by Defendant 11 Original Documents Submitted by Plaintiff 12 Court's order dated December 1, 2017 13 Transcript of December 1, 2016 Oral Argument 14
Upon the foregoing papers, in this action by plaintiff for divorce and ancillary relief, defendant moves, under motion sequence number three, for an order declaring the marriage between her and plaintiff void.
FACTS AND PROCEDURAL BACKGROUND
On March 7, 2003, plaintiff and defendant were married in a civil ceremony in Queens, New York. The parties have one daughter, born in January 2005, who is now 12 years old. At the time that plaintiff and defendant were married, defendant was aware that plaintiff had been previously married in the State of New York to E. C., with whom he did not have any children, and that their marriage had been dissolved. Defendant also knew that plaintiff was the father of three children who were born in the Dominican Republic. Defendant claims that before she married plaintiff, she asked him about the mother of these children, and he told her that the mother of the two older children had abandoned them at a very young age and that he was never married to her. Following plaintiff and defendant's marriage, plaintiff and defendant, in May 2004, purchased land as co-owners in the Dominican Republic.
Defendant claims that during the course of her marriage to plaintiff, plaintiff was physically, verbally, and emotionally abusive towards her. In April 2012, plaintiff and defendant separated. On June 11, 2014, the Family Court, Queens County (the Family Court), granted defendant sole legal and physical custody of the parties' daughter. Also on June 11, 2014, the Family Court issued a final order of protection on behalf of defendant against plaintiff. On November 17, 2015, the Family Court adjudged plaintiff to be in willful violation of that order of protection and issued a new final order of protection, which expires on November 16, 2017.
On March 4, 2015, plaintiff filed this action against defendant by a summons with notice, seeking a divorce pursuant to Domestic Relations Law § 170 (7), visitation with the parties' daughter, and equitable distribution of the marital property. On March 23, 2015, defendant served a notice of appearance in this action. According to defendant, in April 2015, she spoke to an attorney in the Dominican Republic, Lucas Corporan, Esq. (Mr. Corporan), and retained his services for the purpose of helping her determine how to appraise the real property, which she and plaintiff had purchased in May 2004 in the Dominican Republic, in connection with this divorce action. She asserts that Mr. Corporan had to do a background search with the Ministry of Civil Registry regarding plaintiff, and that following this background check, Mr. Corporan informed her that he had found an Integral Marriage Certificate (the Marriage Certificate) for plaintiff with no divorce declared for that marriage.
The Marriage Certificate from the Central Electoral Board National Directorate of Civil Registry shows that plaintiff was married to W. M. R. G. on October 31, 1986 in the Dominican Republic. The Marriage Certificate states that it certifies that in the Office of the Registrar of Births, Marriages and Deaths, registered in the Civil Marriage Record Book, is the marriage celebrated on October 31, 1986 between plaintiff and W. M. R. G. It lists plaintiff's date of birth, his place of birth as being in Santo Domingo, and his personal identity number as XX277-001. It states that plaintiff is the son of J. G. and M. A. M. It lists W. M. R. G.'s date of birth as June XX, 1974, which made her 12 years old at that time. It further lists W. M. R. G.'s place of birth as Santo Domingo, and sets forth that she is the daughter of C. G. and A. R. It states that the witnesses to the marriage were O. C. R. and A. R. and lists their personal identity numbers. Plaintiff's birth certificate issued by the Central Electoral Board National Directorate of Civil Registry shows that his birth date, as listed on the Marriage Certificate, was correct and that the names of his parents are the same as those listed on the Marriage Certificate.
The Marriage Certificate and all other submitted documents have been translated from Spanish to English.
Upon discovery of the Marriage Certificate, defendant had Mr. Corporan investigate if W. M. R. G. was the mother of plaintiff's children. Mr. Corporan obtained copies of the birth certificates, certified by the Central Electoral Board National Directorate of the Civil Registry, for plaintiff's two oldest children, which reflect that one child was born on March XX, 1987 (less than five months after the date listed for plaintiff and W. M. R. G.'s date of marriage) and the other child was born on September XX, 1989. These birth certificates list plaintiff as the father of these children and W. M. R. G. as the mother of these children. The birth certificate for the older child lists plaintiff's identity and electoral card number as XXX-XXXX753-0. While this number is different from the number listed on the Marriage Certificate, it is the same number as that listed on plaintiff's Dominican Republic identification card, which lists his date of birth and contains a photograph of plaintiff, and which expires on September 1, 2024. The birth certificate for the other child does not list any number for plaintiff.
Mr. Corporan has submitted a sworn declaration, in which he attests to the existence of the Marriage Certificate for the October 31, 1986 marriage between plaintiff and W. M. R. G. He further attests, in this sworn declaration, that no divorce decree for W. M. R. G. and plaintiff has been found by him.
On September 15, 2016, defendant filed her instant motion. Plaintiff opposes defendant's motion. Oral argument of defendant's motion was held on December 1, 2016. At that time, plaintiff's attorney, Harvey N. Fertig, Esq. (Mr. Fertig), stated that plaintiff had commenced an action in the Dominican Republic to declare the marriage between him and W. M. R. G. void, and he requested an adjournment so that he could provide proof of this from the Dominican Republic. By an order dated December 1, 2016, the court granted an adjournment to afford plaintiff an opportunity to submit additional evidence by January 27, 2017, and informed plaintiff that a decision would be made upon the issue of the validity of the marriage after that date. Mr. Fertig submitted documents filed in the courts of the Dominican Republic on January 19, 2017 by plaintiff's attorney in the Dominican Republic, Fidel Ernesto Caraballo De Los Santos, Esq., which requested that the courts of the Dominican Republic declare the marriage between plaintiff and W. M. R. G. a nullity. Mr. Fertig stated that he does not know when a decision will be rendered in the Dominican Republic, and requested an adjournment for another month. There have been no further submissions by plaintiff since that time, which is now nearly three months ago.
THE PARTIES' CONTENTIONS
Defendant, in support of her motion, has submitted her affidavit, her attorney's affirmation, Mr. Corporan's sworn declaration, a copy of the Marriage Certificate for plaintiff and W. M. R. G. from the Dominican Republic with a seal to show its authenticity, plaintiff's birth certificate, the birth certificates of plaintiff's two older children in the Dominican Republic, and plaintiff's Dominican Republic identification card. Defendant has also shown that there is no documentation or evidence that plaintiff and W. M. R. G. were divorced or that W. M. R. G. died. She has submitted a certificate from the Central Electoral Board signed by Dr. Jose Augustin Reyes Duran, a civil officer of the Civil State of the First Division of the National District in the Dominican Republic, who certifies that after doing a search through the system of the Registry Office of the Civil State, no divorce decree was found between plaintiff and W. M. R. G..
In opposition to defendant's motion, plaintiff has submitted an affidavit stating that he believes there is enough proof to show that the Marriage Certificate submitted by defendant evidencing his prior marriage is a fraudulent document. Plaintiff has further submitted the affirmation of his attorney, Mr. Fertig, in which Mr. Fertig asserts that he showed the Marriage Certificate to plaintiff, and that plaintiff told him that it was fraudulent. Mr. Fertig states that plaintiff told him that while W. M. R. G. is the mother of two of his children, he never married her. He further states that plaintiff retained an attorney in the Dominican Republic who will show that plaintiff did not marry W. M. R. G.
Although the Marriage Certificate stated that W. M. R. G. is the daughter of C. G. and A. R., plaintiff has submitted an Act of Notoriety, dated September 16, 2016, from N. De La R. C. and R. M., wherein they state that they "have never attended or have served as a witness in any celebration of marriage in any of the State Office officials of the Dominican Republic." They further state that N. De La R. C., as the mother of W. M. R. G., never gave consent for her daughter to marry, which is one of the requirements of the laws of the Dominican Republic when the person marrying is 12 years old. In addition, plaintiff has submitted a photo identification card of N. De La R. C.
Plaintiff also has submitted a certification, which states that the national identity card number XXX277 Series 1 belongs to an individual named M. V. V. As noted above, that was the identification number listed for plaintiff on the Marriage Certificate. Plaintiff has submitted his own photo identification card, which shows that his national identity card number is XXX-XXXX753-0.
After a court appearance on October 13, 2016, plaintiff proffered additional documents in a further attempt to dispute the validity of the marriage between him and W. M. R. G. These documents included an affidavit from Dominican Republic attorney, Carmen Julia Dominguez Rodriguez (Ms. Rodriguez), a copy of plaintiff's identification card which bears identification number XXX-XXXX753-0, and a copy of a handwritten marriage record for plaintiff and W. M. R. G., entitled "Act of Marriage" (the Act of Marriage certificate), from the Dominican Republic Central Electoral Board Civil Registry Office.
The Act of Marriage certificate, relied upon by plaintiff, states that on October 31, 1986, Dra. Rafaelina Peralta Arias of the Civil Registry Office declared plaintiff and W. M. R. G. "united in legitimate marriage." It was signed by plaintiff and W. M. R. G., as the applicants, and by R. M., O. C. R. and A. R., as witnesses. Ms. Rodriguez asserts that the Act of Marriage certificate lacks veracity and is flawed because: (1) it contains an identification number that belongs to M. V. V. and not plaintiff, (2) W. M. R. G. is the natural daughter of N. De La R. C., and W. M. R. G. incorrectly bears the last name G. because her father never recognized her, (3) the identification number that is listed for the witness, A. R., belongs to M. M., (4) W. M. R. G.'s date of birth, which is listed as June XX, 1974, is registered in the Certificate of Identity as June XX, 1974, but in the Electoral Identity document as March XX, 1974, (5) it shows R. M. as a witness, but in the Act of Notoriety, N. De La R. C. and R. M. now swear that they did not attend or serve as witnesses in any marriage celebration between plaintiff and W. M. R. G., and (6) while the requirements for marriage of a minor in the Dominican Republic, as established by the Central Electoral Board, are a birth certificate, identification cards of the parents, consent of the parents, and duly authenticated signatures, the signatures on the handwritten records from the Central Electoral Board were signed by the same person, as confirmed by her own comparison of the signatures. In addition, plaintiff asserts that an action has been commenced by his Dominican Republic attorney in the Dominican Republic to declare the marriage between him and W. M. R. G. void.
DISCUSSION
Initially, the court notes that plaintiff seeks to delay the determination of defendant's motion, which was filed on September 15, 2016, on the basis that he commenced an action in the Dominican Republic to declare the marriage between him and W. M. R. G. void. Notably, as mentioned above, on December 1, 2016, plaintiff indicated to the court that he had already filed a proceeding in the Dominican Republic to annul the marriage, but he could not provide any proof that he had done so. The court, therefore, granted plaintiff an adjournment so that he could obtain proof of this from the Dominican Republic by January 27, 2017. Plaintiff then submitted documents which were first filed in the courts of the Dominican Republic on January 19, 2017, a month after he had claimed that he had already filed these documents. While plaintiff's attorney, Mr. Fertig, in a supplemental affirmation by him, claimed that he needed an additional month for a decision by the Dominican Republic courts, three months have passed since that time and plaintiff has not informed the court of any decision by the Dominican Republic courts. Thus, the court does not find that any further delay on the determination of this issue is warranted.
In addressing defendant's motion, the court notes that pursuant to Domestic Relations Law § 6, "[a] marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living" (see also Mack v Brown, 82 AD3d 133, 140 [2d Dept 2011]; Gomez v Windows on World, 23 AD3d 967, 970 [3d Dept 2005]; McCullen v McCullen, 162 App Div 599, 601-602 [1st Dept 1914]). Thus, where a person has a spouse who is alive and he or she is still legally married to that spouse, his or her subsequent marriage to another is void and considered bigamous (see Domestic Relations Law § 6).
Domestic Relations Law § 140 (1) provides that "[a]n action to declare the nullity of a void marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the life-time of the other, or by the former husband or wife." Although this is an action for divorce commenced by plaintiff, defendant, by her motion, requests that the court declare her marriage to plaintiff null and void upon the ground that he was never divorced from W. M. R. G. and that his prior marriage to her was in effect at the time that she and plaintiff were married.
A void marriage is invalid from its inception, and it is void even without a judicial pronouncement (see Domestic Relations Law § 6). A declaration by the court that the marriage is void simply confirms the fact of its invalidity (see Domestic Relations Law § 140 [1]).
"It is true that there is a rebuttable presumption in favor of the validity of the second of two successive marriages" (Fishman v Fishman, 48 AD2d 876, 877 [2d Dept 1975]; see also Matter of Brown, 40 NY2d 938, 939 [1976]; Mack, 82 AD3d at 140; Matter of Gomez, 23 AD3d at 969; Matter of Seidel v Crown Indus., 132 AD2d 729, 730 [3d Dept 1987]). To rebut that presumption, the party seeking to declare the second marriage void has the burden of proving that, at the time of his or her marriage to the opposing party, he or she had a spouse still living and that his or her first marriage had not been validly terminated or dissolved (see Matter of Brown, 40 NY2d at 939; Mack, 82 AD3d at 140; Matter of Gomez, 23 AD3d at 969; Fishman, 48 AD2d at 877; Apelbaum v Apelbaum, 7 AD2d 911, 911 [2d Dept 1959]; Matter of Meehan, 150 App Div 681, 684 [1st Dept 1912]; R.M. v Dr. R., 19 Misc 3d 402, 406 [Sup Ct, Nassau County 2008]; Whittleton v Whittleton, 3 Misc 2d 542; 546 [Sup Ct, Erie County 1956]). "When the presumption is successfully rebutted, the second marriage is void ab initio . . . and is not ratified or validated by a subsequent dissolution of the first marriage" (Mack, 82 AD3d at 140; see also Domestic Relations Law § 6; Matter of Gomez, 23 AD3d at 970; Matter of Terry, 32 Misc 2d 470, 471 [Sur Ct, NY County 1961]).
An original marriage certificate constitutes prima facie evidence of a marriage (see Mack, 82 AD3d at 140 n 3; DeYong v DeYong, 263 App Div 291, 294 [1st Dept 1942]). Here, the Marriage Certificate constitutes presumptive proof of the validity of plaintiff's prior marriage to W. M. R. G. Plaintiff does not claim that his prior marriage to W. M. R. G. has ever been legally terminated (see Fishman, 48 AD2d at 877).
As to the fact that the identification number listed for plaintiff on the Marriage Certificate is the identification number for a different person, i.e., M. V. V., and that plaintiff's national identity card number, as shown on his photo identification card, is XXX-XXXX753-0, it is noted that plaintiff's former Dominican Republic passports (which have been annexed by defendant) show another identification number for him, i.e., XXX277-1. Thus, plaintiff has possessed, at one point, a different identification number than the one listed on his current identification card. In fact, the identification number listed on the Marriage Certificate, i.e., XXX277-001, is very similar to the identification number listed on plaintiff's former Dominican Republic passports. Therefore, the mere fact that the identification number listed on the Marriage Certificate does not match plaintiff's current identification number does not constitute evidence that the Marriage Certificate is invalid since plaintiff has possessed at least one other identification number from the Dominican Republic.
As to plaintiff's claim that N. De La R. C. is W. M. R. G.'s natural mother, plaintiff has submitted no proof supporting this claim. No birth certificate for W. M. R. G. has been submitted by plaintiff to show that N. De La R. C. is W. M. R. G.'s mother, nor has plaintiff submitted any other evidence to show that N. De La R. C. is, in fact, W. M. R. G.'s legal parent entitled to attest to whether or not consent was provided for the marriage between W. M. R. G. and plaintiff at the time when W. M. R. G. was 12 years old. As discussed above, the parents listed as W. M. R. G.'s parents on the Marriage Certificate are A. R. and C. G., and not N. De La R. C. or R. M.. Moreover, defendant has submitted W. M. R. G.'s birth certificate, which states that her mother is A. De La R., whose identity and electoral card number is XXX874-001, and not N. De La R. C. The name of W. M. R. G.'s father is not listed on her birth certificate, and her mother is listed as being unmarried.
Plaintiff's assertion that the personal identity number for A. R., as listed on the Marriage Certificate as XXX474-001, belongs to M. M. has not been supported by any documentation. Furthermore, it appears that this was a typographical error on the Marriage Certificate, with the numbers 4 and 8 inverted, since the personal identity number listed on A. R.'s birth certificate, as noted above, is XXX874-001. In any event, it is possible that the identification number previously assigned to A. R. was thereafter assigned to another person.
Plaintiff asserts that there is a discrepancy regarding W. M. R. G.'s date of birth, which is listed as June XX, 1974 in the Marriage Certificate, since it is listed in the Certificate of Identity as June XX, 1974, but in the Electoral Identity document as March XX, 1974. In addition, W. M. R. G.'s birth certificate lists her date of birth as February XX, 1974. These minor errors in the month and day, which set forth the correct year, however, are insufficient to invalidate the marriage between W. M. R. G. and plaintiff. Notably, W. M. R. G.'s birth certificate and the Marriage Certificate both state that her birth certificate was in Book 747, page 173 in the 3rd Division of the National District in Santo Domingo.
The fact that N. De La R. C. swore, in the September 16, 2016 Act of Notoriety, that she did not attend or serve as a witness in any marriage celebration, in the any State Office of the Dominican Republic does not provide any evidence that the Marriage Certificate was fraudulent. The Marriage Certificate and W. M. R. G.'s birth certificate show that W. M. R. G.'s mother is A. R., who was listed as a witness on the Marriage Certificate, and not N. De La R. C., who was not listed as a witness on the Marriage Certificate.
With respect to R. M.'s declaration that he did not attend or serve as a witness to any marriage celebration, it is plaintiff who has asserted that R. M. was listed as a witness in the Act of Marriage certificate. There is no evidence that R. M. was W. M. R. G.'s father since he was not listed as such on her birth certificate, nor was there any requirement that he be a witness to the marriage. Moreover, there were two other witnesses listed on the Act of Marriage certificate, namely, W. M. R. G.'s mother, A. R., and O. C. R.. In addition, as noted above, the Marriage Certificate listed O. C. R. and A. R., and not R. M., as the witnesses to plaintiff and W. M. R. G.'s marriage.
While W. M. R. G. was 12 years old (and pregnant) at the time of her marriage to plaintiff, parental consent from her mother can be inferred from the fact that A. R. was a witness to the marriage. Since W. M. R. G. had no legal father, no consent from her father was necessary to validate the marriage.
Although plaintiff's Dominican Republic attorney, Ms. Rodriguez, claims that the signatures on the Act of Marriage certificate were signed by the same person, there is no support whatsoever for this claim. No affidavit from a handwriting expert has been submitted by plaintiff. Moreover, this claim is not made with respect to the Marriage Certificate, which was also signed by plaintiff and W. M. R. G. and by witnesses.
Thus, the court finds that plaintiff's argument that the Marriage Certificate is fraudulent is devoid of merit. Plaintiff's claim that he never married W. M. R. G. is conclusory and unsubstantiated, and he has failed to overcome the evidence submitted by defendant which establishes the prima facie validity of that marriage. The presumptive validity of plaintiff's marriage to defendant has been sufficiently rebutted by defendant's proof. The court, therefore, concludes that the marriage of plaintiff and defendant was and is void, under Domestic Relations Law § 6, and that it must be declared void ab initio (see Mack, 82 AD3d at 140; Matter of Gomez, 23 AD3d at 970; Fishman, 48 AD2d at 876-877). Consequently, plaintiff's complaint in this divorce action must be dismissed since there is no existing legitimate marriage to dissolve (see Domestic Relations Law § 6; Fishman, 48 AD3d at 876; Johnson v Johnson, 270 App Div 811, 812 [2d Dept 1946], affd 295 NY 477 [1946]).
CONCLUSION
Accordingly, it is hereby ORDERED that defendant's motion for an order declaring the marriage between her and plaintiff void is granted, and it is hereby declared that defendant's marriage to plaintiff is null and void; and it is further
ORDERED that Plaintiff's complaint in this action is dismissed.
This constitutes the decision and order of this court. Settle judgment accordingly.
E N T E R :
HON. DELORES J. THOMAS, J.S.C.