Opinion
XXXXX.
Decided March 10, 2010.
AMY SKLAR, ESQ., LAW OFFICE OF DOMINIC BARBARA, Garden City, NY, Attorney for Plaintiff.
RICHARD P. FORD, ESQ., KEITH SHAPIRO FORD, Garden City, NY, Attorney for Defendant.
The plaintiff wife sued for an annulment pursuant to Domestic Relations Law, Sec 140 (e), and, in the alternative, a divorce on the grounds of cruel and inhuman treatment from the defendant husband.
Each party was represented by counsel and each testified in their own behalf. Careful consideration was paid to both the manner and the substance of their testimony. The plaintiff was a remarkably detailed and thorough witness. The court found her to be highly credible. To the contrary, the court found the defendant to be incredible on virtually all matters of significance at the trial.
The complaint for annulment will be considered first. The plaintiff argues that the marriage should be annulled because the defendant married her solely to obtain citizenship and that he committed fraud by lying to her about several significant issues that strike at the heart of the marriage contract culminating with her belief that he was engaged in a homosexual relationship with another man.
The defendant is a Pakistani national who was born February 20, 1975 and came to the United States in 1996 on a visitor visa. He testified that he sought political asylum here when the ruling party in his homeland was ousted and for unexplained reasons his family was affected. None of the other members of his family have apparently sought asylum. He testified that his official immigration status is known as "withholding deportation." After arriving in America the defendant attended college in Queens and obtained certificates in informational technology from Manhattan Community College. Plaintiff, 31 years of age, is an American citizen who is a Sunni Muslim who graduated from St. John's University's pharmacology program and works as a pharmacist in Hempstead, New York.
Both parties agreed that they met at a "speed dating" function tailored for Muslim professionals and offered by an internet company known as Milan US. Prior to attending the function those interested must file a profile of themselves for posting on the internet site. From a review of these profiles one decides whom they are interested in meeting at the function. When questioned about his profile defendant said that his friends' wife had written it for him and he did not really pay attention to it. In the Milan profile the defendant listed his occupation as "Network Engineer/Business owner"; his income as "$100,000"; his marital status as "Never been married"; his Religious Level "moderate" and his Legal Status "Moderate". He also had posted a profile on a similar website known as Mehndi.com where he listed his Residence Status as "permanent resident"; Family Values "Moderate"; Occupation "IT/Telecom Professional"; and Marital Status "Never Married".
After meeting at that Milan function, the two had a quick courtship with the defendant meeting plaintiff's parents two days later. She testified that it is the practice of Sunnis to have the families meet and approve of a prospective husband. If that goes well then the relationship proceeds. She testified that of all the things they discussed the most important to her were that he had never been married, that he practice his religion in a similar manner that she does and that he wants to have children. When asked why it was important that he had not been married before she answered that she was a virgin and expected her husband to be and that she would not have pursued a relationship with someone who had previously been married. She also testified that she considered herself as "moderate" in her religious beliefs and practices-that is while she does not cover herself in public she prays typically twice daily, does not drink alcohol, eats a strict hallal diet and fasts during those times when it is called for. After meeting her parents March 24, 2008, the parties moved rather quickly to get married. They had discussed a late summer wedding but the defendant asked that they marry quickly so that he could travel to Pakistan to visit his ailing father. He explained that because of his immigration status he could not return to the US if he left. She agreed and the couple got engaged in May and had a religious ceremony on June 10 and then obtained their license June 14, 2008.
The Prior Engagements Marriages
The day before obtaining their marriage license the defendant informed the plaintiff that he had been married on July 13, 1999 to a woman named Matica Pruett. The plaintiff testified credibly that this was the first time that he had told her this and that she believed he had only told her because he knew it was going to show up on their wedding license application which she would see the next day. While she said that it was very important to her that she marry someone who had never been married and was a virgin like she was, she decided to go through with the wedding ceremony and not move to have it annulled because she was already married in the religious ceremony and felt she could overcome this with him and it was best to try and make it work. The couple had also made many plans for a 500 person wedding in less than 6 weeks. She also testified that if he had told her the night they met that he had been married before she would not have spoken to him "past three minutes." Subsequently, according to her, he told her that he paid Pruett $10,000 to get married in order for him to get a green card so he could travel to Pakistan but that Pruett subsequently disappeared and he was unable to complete the citizenship application. They were divorced on November 19, 2002. The defendant denied all of this testimony. Plaintiff then testified that after obtaining the marriage license but before their wedding party on August 2 she learned that the defendant had also obtained a license to marry another woman, Sheema Choudhry on December 17, 2007. The defendant told her that Ms. Choudhry had what he described as some sort of nervous breakdown at their wedding ceremony so it was he who called off the wedding. Subsequently the plaintiff became aware that the defendant was also engaged to a woman named Aruj Choudhry (phonetic) in 2005, Kiran Bashir in 2006 and Fatima Beig in 2007. The defendant testified that the plaintiff did know about his second marriage to Choudhry and that she knew about her when they went to obtain their license, not after. He testified that it was the law that he had to show what had happened to that license from Choudhry and since the plaintiff was there she saw it. On cross examination the defendant was not able to provide any proof of any rule or regulation that corroborated this. Likewise the court knows of no requirement to "turn in" a marriage license that was taken out years before but never filed with the clerk when there was no marriage. The license requires only that if a party has been married previously they must provide information concerning prior marriages and proof of divorces or annulments. The court found the defendant's testimony on this issue incredible.
Thus, the evidence adduced at the trial on the issue of the defendant's prior relationships establishes that upon meeting the plaintiff he told her that he had never been married; that after being married in a religious ceremony he told her the day before going for their marriage license that he had been married before; that subsequent to that date he informed her that he had been through a religious marriage with another woman and engaged three times in addition to that. That amounts to two actual marriages and another attempt at marriage and three other engagements between 1999 and 2008. The court considers this activity circumstantial evidence of the defendant's desire to obtain citizenship by marrying a US citizen, including his marriage to the plaintiff.
Representations of his Occupation Income
Clearly, on his internet profile the defendant described himself as a "network engineer-business owner" who earned $100,000+ per year. Plaintiff next produced a profile from another website known as "Mendi" also geared to Muslim professionals. This time he listed his income as being $100,00-$200,000 but again denied writing it. Plaintiff was also told that defendant was a partner in a restaurant in Brooklyn and spent time there. After living with the defendant she found that only the restaurant part was true. He never worked in the IT field at all that she was aware of, and more importantly, made no money. Plaintiff testified, without contradiction from defendant, that during the course of their marriage the defendant deposited a total of $4,000 into their joint account. During the same time the plaintiff earned approximately $90,000 and was the sole support of the couple. She said she paid for literally everything he owned and they did, including his trips to Pakistan. He said he paid for two of his trips. (Discussed below). So dire was his financial situation that her parents gave them $20,000 as a wedding gift to buy furniture and within three weeks the defendant had withdrawn all but $18,000 of it. One month after the couple started living together he asked her for a loan of $75,000. When she asked him about the $100,000 he earned he said that his business was failing and that he did not have money. He explained that while he was on one of his three trips to Pakistan during the marriage the NYC Department of Health had shut his restaurant down for code violations. He said that he and his partners had to put money into the business to cure the violations and had no income while the store was shut. He never explained how his IT income dropped from $100,000+ to zero during the marriage. Questioned about the contents of his profile, he was asked if it was true that he was never a network engineer and he answered that he had "always been a computer consultant" so he did not consider it a lie. When asked how many computers he had fixed during the time he lived with the plaintiff he answered "a few-three or four". He also admitted that he had written that his income was $100,000 but he denied ever telling her that he was earning that when he met her. Rather he said that he told her that he was suffering through the economy and she said "that's okay, I'm a pharmacist and if it doesn't work out we can set something up." When he was asked if he ever told her how much money he had made in the year they were married he said, "yes, a few weeks after the event I told her $3,000." It appears beyond doubt that the defendant misrepresented both the manner in which he earned a living and the amount of money he made to the plaintiff in order to induce her to marry him.
Religious Practice
The plaintiff testified about several other misrepresentations that went to the core of her beliefs and that if she had known the truth beforehand she would not have gone through with the marriage. Specifically, she testified that her religion is extremely important to her and that she made it clear to the defendant when she first met him that she considered herself "moderate but not extreme . . . pretty religious." She did not smoke, drink or have pre — marital sex and usually prays twice daily, kept a hallal diet and fasted. She testified that she expected the same from him. According to her testimony he stated that he was in complete agreement with her on the importance of these things. The defendant was questioned at length about the representations he had made concerning his religion on his profile. He said that they did not discuss religion at the event but that he represented that he was "moderate" on the profile and told her that when they met; he said that she described herself as being a "very liberal". He testified that he told her that he was not a "religious fanatic" and does not pray five times a day and never told her that he did. He also denied telling her that he did not drink and denied telling her that he followed a hallal diet. The court credits the plaintiff's testimony on this very significant issue. She does not cover herself but she does not expose her body except in very moderate ways. The pictures put into evidence support her claim and especially those on the cruise. The defendant's claims that she wore a bikini on the trip and that she removed those pictures from the book prior to the trial is not believable.
Immigration Status
When questioned about the immigration status he provided on the profile, he admitted that he wrote that he had a work visa which he now testified was not actually true. His official status is E 80 and that he is allowed to work under it and that he can remain in the US "forever". He could not, however, leave the country and return with his status. While he testified that he never misled her on his status, the court finds that he did. The court found the defendant to be very evasive in his answers concerning his interpretation of his status. His resident status on the profile was listed as "permanent resident". The defendant maintained that the plaintiff, on her own, offered to assist him in becoming a citizen. He admitted telling her that he wanted to return to Pakistan to visit his ill father but that he was not free to travel and return to the US under his present status and she volunteered to "help me with that".
Relationship with S.S.
In August of 2004 the defendant testified that he was living in an apartment in Brooklyn New York on E. 8th Street. After arriving in the US he met a Mr. while attending school in Manhattan. Around August, 2004 S.S., his wife and son moved into defendant's one bedroom apartment. S.S. is employed in the information technology section of a large NY financial institution working in Jersey City, New Jersey. The four of them remained in that apartment until December of 2007 when they moved to Westbury, Long Island so that the S.S.' autistic son could obtain better schooling. According to the plaintiff, at the time of their engagement, it was this house in Westbury that the defendant was living in, and had represented as being owned by him and being a two family house with his friends renting upstairs from him.
According to the plaintiff, when she began to live with defendant in Westbury their life together was nothing as it was supposed to be. The defendant's business was not computer consulting but rather being a partner and operator of a 24 hour Middle Eastern restaurant in Brooklyn. He worked very long hours, leaving the house before eight in the morning with S.S. and often returning between midnight and 2:00 am. She described their living arrangements as bizarre. First of all, the house was not a legal two family as the defendant had represented but rather a one family dwelling. As the S.S.' lived upstairs, they had no kitchen of their own and so had their meals together with the plaintiff and defendant. Plaintiff described their married life as being virtually communal with people that she did not even know, and with the two husbands gone most of the days and even weekends. After several weeks she testified that she complained to him that the two of them had no life together and were never alone. She asked him repeatedly to move out to a place of their own but he refused.
The defendant and S.S. went to work together in the mornings and returned home in the evenings at all hours. The only car was plaintiff's and she described the routine as follows: She would drive them to the Westbury train station where the defendant would take the Long Island Railroad to Brooklyn and S.S. would go to Penn Station, then take the PATH train to Jersey City. After work S.S. would travel from New Jersey to Brooklyn and then home with defendant. Plaintiff testified that many nights during the week defendant would not return home until well past midnight.
Other aspects of their relationship were equally troubling. She testified that S.S. called the defendant daily to wake him up in the morning. She said that they shared clothes, went grocery shopping together, shared money, that Shrinivas paid all of the defendant's bills and had all of the couple's passwords. She came to believe that the two were involved in a homosexual relationship and offers this as another basis for the annulment.
On the defendant's final trip to Pakistan after his father had passed away she testified that the defendant called Shrinivas every day that he was away using 375 minutes of cellular minutes. During that same time period she testified that defendant called her once.
Kiran Bashir was the last of the engagements prior to his meeting the plaintiff. Her father, Mr. Ejaz Bashir, was called as a witness and he testified that he and his family had lived on the same floor as defendant in the 8th Street apartment building for several years and that eventually his daughter was introduced to defendant. The families met, pursuant to custom, and the wedding was set up. At the time S.S. and his family were living with defendant in his one bedroom apartment. The defendant told him that after the wedding S.S. would move out but Bashir said that only a few days before the wedding the family was still there. Also, there was a furniture delivery made to the apartment for the couple but the defendant had never moved to take it inside. Two days before the wedding the witness said that he was not satisfied with several aspects of the plans and he went to defendant's apartment at two in the morning and he knocked on the door and then tried it and it was open. When he opened it he said that he found the defendant and S.S. engaged in a sex act in the living room. The wedding was then broken off. The defendant and S.S. both vehemently denied the incident ever occurred as well as the allegation of a romantic affair between them.
In April of 2009 the plaintiff testified to an incident which she said led to her leaving the Westbury home and moving in with her parents. According to the plaintiff, the defendant was not coming home until 1:00 or 2:00 in the morning every day. Several times when he came home she smelled alcohol on him and confronted him about this. On the night in question he refused to talk to her and turned his back to her in bed. Then he got up and started throwing things in the bedroom. He ended breaking up a mirror that was hanging on the wall. She said that she was going to call the police and called her uncle who came to the house with her parents at about 2:00 am. In the meantime, S.S. had heard the disturbance and came downstairs to help calm things down. She left that night and went to stay with her parents.
At this time the defendant's immigration interview was scheduled to take place shortly and she testified that he began to call her constantly asking her what she intended to do. When she replied that she did not know, she said he told her that she had to come to the interview and that if she did not he would consider the marriage over. Plaintiff testified that while she was staying at her parents during this time defendant began calling her constantly. He promised her that they would move from Westbury into their own home and that he would stop working seven days a week. She testified that she decided to attend the April 20 hearing because if she didn't go "I wouldn't be married." Subsequent to this, she testified that "things were great for four or five days." The couple moved to Queens, to an apartment owned by her uncle with the hope that they "would have their own life." However, she testified that the relationship with S.S. was kept up by the defendant and soon he was getting home later than before even though he was a half hour closer to work. Because they were no longer near the Long Island Railroad the plaintiff purchased a car for the defendant. The defendant's father, who had been ill for some time, passed away soon after they moved. When she was unable to reach him she called S.S. who told her that the defendant was with him and was too distraught to drive. She told him to come home and then testified that while she was waiting for him she saw him being dropped off and observed defendant kiss S.S. on the mouth before leaving the car. She testified that he did not see her and she did not confront him but left immediately after and moved for the annulment.
The defendant denied vehemently any sexual relationship with his friend and denied ever kissing him at that time. He also pointed out that this alleged kiss was not included in either her original or amended complaint. Yet at trial she testified that after seeing it she moved out and filed for the annulment. He also established that the couple regularly engaged in sexual intercourse. However, the plaintiff adamantly testified that the defendant never kissed her once during the entire time that they were together, either before or after the marriage.
The Marital Residence
As discussed in some detail above, the parties moved into a house located on Merillon Avenue in Westbury, New York after the marriage. The plaintiff testified that they visited the house prior to moving in and it was then that she met the S.S. family who were already living there with the defendant. Plaintiff testified that the defendant told her that he owned the house and rented out the top floor to his friend and his family. He told her later that the deal to buy the house had fallen through and that the house went into foreclosure before he could buy it but he assured her that they were going to buy the house with Shrinivas and then renovate it and add a second kitchen. That never happened. The defendant denied ever telling the plaintiff that he owned the house and said that he told her that they would not have their own home but rather if "he" (apparently Shrinivas) bought it out of foreclosure it would be a two family house. Again, the defendant's testimony is not believable.
The plaintiff testified credibly that within two weeks of living there in this "communal" arrangement she began to ask the defendant when they would be moving out to establish their own home. He constantly put her off. In addition, he took three trips to Pakistan during the marriage and for two of them the plaintiff returned home to live with her parents rather than remain in the Westbury house.
The first of these trips to Pakistan was taken 2 days after the religious ceremony and was in fact the reason that the defendant asked the plaintiff to have the religious ceremony so quickly after their engagement. As explained above, the defendant told the plaintiff that his father was very ill and that he could not return to the US if he went to visit him without having the religious marriage and she agreed. That trip lasted 26 days.
The defendant next traveled alone to see his family November 2. The plaintiff testified that she did not have the vacation time accumulated to take off so soon after the June trip and asked him to wait but he went without her. That trip lasted 31 days and the defendant called her twice during this time. In May, the defendant traveled again to his home country and this time it was for 21 days. Unfortunately the defendant's long ailing father passed away five hours after the defendant returned home and she informed him of this when she met him upon his return. According to her testimony he left immediately to be with S.S. It was later that night that plaintiff testified concerning the incident where she observed her husband kiss his friend in the car.
The idea that this plaintiff would agree to begin her married life by moving into a one family cape cod style house in Westbury with two adults whom she did not know along with their 8 year old autistic son is simply incredible to the court. Her level of discomfort is demonstrated by her decision to move out of the house three times in the first nine months of her marriage.
Conclusions of Law
Domestic Relations Law Section 7 (4) allows for the voiding of the marriage if one party's consent was obtained by "reason of force, duress or fraud." Bearing in mind that a marriage is a civil contract, albeit with certain special characteristics, that contract may be challenged by the same grounds as any other. For example, force, fraud, duress, and a lack of voluntariness are typical defenses to voiding a marriage contract. Significantly, however, it is important to note that the alleged basis for voiding the marriage must be specific to the marital contract and fraud, in particular, must relate specifically to the marital relationship and affect the quality of the marital life. (See New York Law of Domestic Relations, Scheinkman, Vol. 11 Sec 9:11. Additionally, the fraud must be of a nature that a reasonably prudent person would have been deceived. ( Kober v. Kober, 16 NY2d 191, at 195).
Over one hundred years ago the Court of Appeals ruled in DiLorenzo v. DiLorenzo, 174 NY 467 (1903) that for a marriage contract to be valid it must have been entered into with full and free consent and that every misrepresentation of a material fact made with the intention to induce another to enter into an agreement and without which he would not have done so justifies the voiding of the agreement. (At 467). In DiLorenzo, the defendant represented to the plaintiff that he was the father of her child, and the court, convinced that plaintiff would not have married defendant without the fraudulent representation, annulled the marriage. While any misrepresentation of a material fact incidental to the marriage contract is sufficient to void it, not all such allegations will sustain the burden. "It is for the court, in the exercise of sound discretion and with regard to public policy because of the peculiar nature of the contract, to determine whether or not the misrepresentations of fact and the probable consequences to be expected to be caused because of these misrepresentations are of sufficient importance to cause the court to exercise its power to dissolve the contract" Sobol v. Sobol, 88 Misc. 277 (Sup.Ct. NY, 1914) at 279. In Sobol, the defendant did not disclose to the plaintiff that he was suffering from tuberculosis and the marriage contract was dissolved. In Kober v. Kober, 16 NY2d 191, the Court of Appeals granted an annulment where the defendant failed to disclose that he had been an officer in the German army and a ardent Nazi, fanatically anti-Semitic. And in the case of Murray v. Murray, 271 AD2d 587 (2000), the plaintiff sought an annulment on the grounds that the defendant misrepresented her prior marital status and her age. Supreme Court granted the annulment and the decision was affirmed holding that the fraudulent misrepresentations were material and that the plaintiff would not have consented to the marriage had they not been made.
On the other hand, in the 1952 Court of Appeals case of Bachoobai Woronzoff-Daschkoff v. Roman Woronzoff-Daschkoff, 303 NY 506, the court refused to void the marriage based upon the plaintiff's complaint that the defendant married her for money not love, and represented that he had never taken money from a woman. Likewise in the case of Brazil v. Brazil, 235 AD2d 611 (3rd Dept. 1997), the plaintiff sought an annulment based upon the allegation that the defendant misrepresented to him that she would reside primarily with him in the Albany, New York area after they remarried. The court's denial was based upon what the court found was insufficient proof that defendant did in fact ever promise to follow him to Albany.
In addition, in order to obtain an annulment, plaintiff must show that she ceased cohabitation immediately upon the discovery of the alleged fraud pursuant to the statute. (DRL § 140 [e]). DRL § 140 (e) is a codification of common law whereby a plaintiff who claims fraud is under an obligation to discover it within a reasonable time after the marriage, and on discovery to then disavow the marriage. ( Marks v. Marks, 283 A.D. 1136; Mienik v. Mienik, 91 AD2d 604).
The court considers the testimony concerning the four engagements and two marriages prior to the plaintiff as significant circumstantial evidence that the defendant did, in fact, enter into this marriage for the sole purpose of establishing citizenship in the United States. His failure to tell her of his virtual serial attempts at marriage and his two failed marriages amounts to a fraudulent misrepresentation that so strikes at the essence of their contract that it alone would be enough to void the marriage. These revelations are even more devastating in the context of these facts because the plaintiff made it clear on the night that she met the defendant that she is a practicing "moderate" Muslim and marrying a man who had never been married before and was a virgin was a requirement for her. In addition, however, the evidence clearly establishes by a preponderance of the credible evidence that the defendant also lied to the plaintiff about his income, his job, the place where he lived, and his religious practices and beliefs. These were, the court finds, intentional fraudulent misrepresentations that the plaintiff was within reason to believe. Virtually nothing about the defendant was true and these intentional lies are of such a nature that the only viable remedy is to void the contract because clearly had the plaintiff known that he had been married twice, engaged three times, earned no income, was not a professional, lived with another family and was not a practicing Muslim she would never have married him. The plaintiff also maintains that the defendant is a homosexual, involved in a romantic relationship with their "housemate" Mr. S.S.
Here, the action was commenced within 13 months of the marriage. As the facts indicate, there were several separations during that time period and a series of events that unfolded that convinced the plaintiff that the marriage was a fraud. The sequence of events indicative of the lies and fraud promulgated by defendant culminated in plaintiff's discovery that her husband misrepresented by omission his sexual orientation in order to attain a marriage with plaintiff. Plaintiff was ultimately convinced that her husband had fraudulently induced her to enter into this marriage when she discovered that defendant was involved in a relationship with his best friend after witnessing their kissing. She immediately left the marital residence, refused to cohabit with defendant, and filed this action for annulment. Her testimony is corroborated by that of Mr. Ejaz Bashir who testified that he witnessed the defendant having sex with his best friend on a prior occasion, unbeknownst to plaintiff.
Based upon the foregoing, the plaintiff is granted an annulment from the defendant.