L.C.B.-T. v T.L.T.
Annotate this CaseDecided on December 12, 2012
Supreme Court, Queens County
L.C.B.-T., Plaintiff,
against
T.L.T., Defendant.
xxxxx/2008
Charles J. Markey, J.
Order to Show Cause...................................................................................................1
Transcripts of Court proceedings on August 18, 2010, November 18, 2010, and
March 17, 2011.................................................................................................2-4
Affirmation in Opposition in the Foreclosure Action...................................................5
Stipulation of Settlement................................................................................................. 6
CHARLES J. MARKEY, J.:
In the present matrimonial action, the parties signed a Stipulation of Settlement, dated August 15, 2009, where the defendant-husband gave the plaintiff a lump sum payment of $10,000. In the stipulation, the defendant-husband, who was the custodial parent of two unemancipated children from a prior relationship, together with the plaintiff-wife, L. C. B.-T.[FN1] stated: "WHEREAS, there are no children of the marriage, and none are expected." This language appeared conspicuously on the first page of the stipulation, filed with the County Clerk. The defendant had his signature notarized on the stipulation, but the plaintiff-wife did not. The Court later learned that the parties to this matrimonial action do indeed have a child of the marriage, and that child, as confirmed by this Court's review of the birth certificate, is still an unemancipated minor.
Nevertheless, in her affidavit in support of the uncontested divorce, the plaintiff-wife swore that there were no children of the marriage. Her affidavit, sworn to on June [*2]22, 2009, states: "There is no child as a result of this marriage, and no child is expected." Her proposed findings of fact clearly stated that there were no children of the marriage. If there were children, this divorce would not have been assigned to the undersigned, since the undersigned received this matter as an uncontested divorce not involving children.
The Court, based on the representations of the parties that there were no children of this marriage, granted a judgment of divorce on November 9, 2009, and entered by the Clerk of the Court on December 23, 2009, two years ago. Had the parties been honest with the Court, this action would not have been assigned to the undersigned Justice, who was serving a term of doing uncontested matrimonial actions not involving unemancipated children.
At one of the three hearings in this action, the undersigned expressly stated on the record the concerns of the validity of the divorce in light of the misrepresentations made to procure it. See Transcript of November 18, 2010, page 15.
The plaintiff-wife and her counsel - - who did not represent the plaintiff in the actual divorce proceedings or participate in the drafting of the earlier questionable papers supplied to the Court - - explained that the paperwork for the divorce was done by a "divorce mill" and plaintiff was negligent in reading the papers before signing. This Court does not accept that explanation. The plaintiff supplied several papers to the Court with the incorrect statement, and it is impermissible for a party to deny and shift responsibility by denying that they read papers.
Justice Henry A. Hudson, in Mestrovic v Mestrovic, 133 NYS2d 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 [*3]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 AD2d 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 NY Slip Op 51552(U) [Family Ct Onondaga County 2010]; Werther v Werther, 9 Misc 3d 1114(A), 2005 WL 2384722, 2005 NY Slip Op 51543(U) [Sup Ct Nassau County 2005].
In the present case, it appears to the undersigned that a false statement regarding no children was made by the plaintiff-wife to get a judgment of divorce by Supreme Court expeditiously, rather than engage in a protracted case with her husband in the contested matrimonial parts of this Court. The undersigned believes that the plaintiff-wife manipulatively hoped to bypass the Supreme Court on the issue of support payments and get the Family Court to order child support. Unfortunately, for the plaintiff-wife, the Clerk in the Family Court directed the plaintiff-wife to return to Supreme Court to amend the Judgment of Divorce.
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 NY 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 NYS2d 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 [*4]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.
This Court denies the plaintiff-wife's order to show cause seeking to amend the Judgment of Divorce to reflect that there is a son of the marriage. This Court, in addition, vacates the Judgment of Divorce and dismisses the action 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 undersigned.
This Court, moreover, vacates and lifts all previous stays, including those regarding a related mortgage foreclosure matter.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York
December 12, 2012
Footnotes
Footnote 1: This version of the opinion, submitted for online publication, eliminates and redacts any personal information in this matrimonial action, especially since children are involved.
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