N.C. v M.C.

[*1] N.C. v M.C. 2011 NY Slip Op 52331(U) Decided on December 22, 2011 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2011
Supreme Court, Queens County

N.C., Plaintiff,

against

M.C., Defendant. Index Number Omitted



ABC LENDER, -against-

against

N.C. Index Number Omitted, Motion Seq. No. 2



L.C. B.-T. -against-

against

T.T.



XXXXX



Appearances of Counsel:

For Plaintiff N.C.: Irving Singer, Esq., 223 Fulton Avenue, Hempstead, New York 11550

For Defendant M.C.: Wilens & Baker, P.C., by Yesenia M. Rivera-Sipes, Esq., 450 Seventh Avenue, New York, New York 10123

For Plaintiff ABC LENDER: Steven H. Langer, Esq., 199 Jericho Turnpike, Floral Park, New York 11001-2100

For Plaintiff L.C. B.-T.: Lesley Benjamin, P.C., by Lesley Benjamin, Esq., 1168 East 37th Street, Brooklyn, New York 11210

For Defendant T.T.: Pro Se

For Plaintiff XYZ LENDER: Steven J. Baum, P.C., by Caren L. Samplin,

Esq., 900 Merchants Concourse, Westbury, New York 11590 and Brian M. Swann, Esq., 220 Northpointe Parkway, Amherst, New York 14240-1291

Charles J. Markey, J.

RE: N.C. v M.C.Papers Numbered

Order to Show Cause .............................................................................................1

Judgment of Divorce, by default, from the court in Haiti.......................................2

Re: L.C. B.-T. v T.T.Papers Numbered

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.:

The aforementioned caption consolidates, only for purposes of decision, two matrimonial actions, with similar facts. In both of the matrimonial actions, the undersigned, as a Supreme Court Justice doing a rotation deciding uncontested matrimonial actions, had granted a Judgment of Divorce based on express sworn [*2]statements and Findings of fact that there were no children of the marriage. In both of those cases, the Court has discovered that there were unemancipated children of the marriages whose support was not provided for in the proposed or signed orders.

In addition, in both matrimonial actions, the parties are entangled in separate mortgage foreclosure lawsuits.

N.C. v M.C.[FN1]

According to the complaint, filed by attorney Irving Singer 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. Singer. There are two different summonses with notice. In one summons with notice, Mr. Singer warns the parties, inter alia, not to remove the children of the marriage from any medical, hospital, or dental plan.

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. Singer, 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 Irving Singer. 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. Singer, 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 [*3]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 claims that there were no children of the marriage was false. The parties have two children, R.C., born on August 3, 1994, and S.C., born on February 14, 1998. 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, 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. The marital home is under foreclosure proceedings, in a separate action, assigned to a different judge.

L.C. B.-T. v T.T.

In L.C. B-T. v T.T., 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. 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.

Nevertheless, in her affidavit in support of the uncontested divorce, the plaintiff-[*4]wife swore that there were no children of the marriage. Her affidavit, sworn to on June 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.

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 doers 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.

LEGAL DISCUSSION

Justice Henry A. Hudson, in Mestrovic v Mestrovic, 133 NYS2d 112 [Sup Ct Onondaga County 1953] [n.o.r.], 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]. [*5]

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 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 N.C. v M.C., on several occasions, 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.

In L.C. B.-T., 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.

In each of the actions, 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 on 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.

Now that 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 [*6]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 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 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 N.C. v M.C., 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.

In L.C. B.-T. v T.T., this Court denies the plaintiff-wife's order to show cause that seeks for this Court 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.

In L.C. B.-T. v T.T., this Court vacates and lifts all previous stays regarding the foreclosure matter. The foreclosure case is pending in front of the Honorable Frederick Sampson, of this Court.

In both N.C. v M.C. and L.C. B.-T. v T.T., this Court lifts and vacates all prior stays and restraints, thereby allowing the two separate actions for foreclosure by the plaintiff lenders in those cases, assigned to other judges of this Court, to continue.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey [*7]

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

December 22, 2011

Footnotes

Footnote 1: For purposes of publication, the Court has deleted the names of the parties and the index numbers in order to protect their privacy interests.