Hester v Hester
Annotate this CaseDecided on March 14, 2013
Supreme Court, Westchester County
Lee A. Hester, Plaintiff,
against
Letitia C. Hester, Defendants.
28419/2010
Lee A. Hester, Sr.
316 Franklin Avenue
Mount Vernon, NY 10553
Sarah B. Hectman, Esq.
670 White Plains Road, PH
Scarsdale, NY 10583
William J. Giacomo, J.
Factual and Procedural Background
The parties married on June 19, 1976 and have lived separate and apart since 1989. There are two emancipated children of the marriage.
On November 12, 2010, the husband, appearing pro se, commenced this action seeking a judgment of divorce and equitable distribution of the martial assets. The wife was granted poor person status and assigned counsel for this litigation.
On June 12, 2012, this Court held a hearing on the issue of spousal maintenance and the distribution of the martial assets and on July 18, 2012 rendered a decision. In its decision, the Court awarded the wife maintenance of $350 per month for the rest of her life commencing on July 1, 2012. The Court also awarded the wife $4,000 toward debts accumulated by her during the course of the marriage for the support of the parties' children. The Court also directed that the husband and wife share in husband's pension pursuant to the formula in Majauskas v. Majauskas (61 NY2d 481 474 NYS2d 699, 463 NE2d 15 [1984]). Finally, the Court directed the husband to pay the wife the sum of $110 representing the quarterly payment on the wife's life insurance for January 2012 which he failed to make.
The husband, who appeared pro se during this litigation, now moves to set aside this Court's July 18, 2012 decision and order and dismiss the action on the ground that at the time of this action the parties were already divorced pursuant to a 1988 Judgment of Divorce. The wife moves for an award of counsel fees.
Although the husband did not provide the Court with a copy of this Judgment of Divorce or even an index number, the Court has searched the County Clerk's file and located the papers in the action of Hester v. Hester Index No. 6315/1988.
A review of the file reveals that in July of 1988 the wife, with the help of the Legal Aid Society of Westchester, commenced a matrimonial action. The husband was personally served with the summons and complaint on July 21, 1988. The husband [*2]neither appeared in the action nor answered the complaint.
In her complaint the wife sought, inter alia, child support and spousal maintenance as well as equitable distribution of the martial property.
On September 6, 1988, the wife moved for a judgment of divorce. The husband was served with the motion as well as all the supporting documents by certified mail return receipt. The return receipt was signed by the husband and placed in the Court file. In her motion, the wife sought an award of child support, maintenance, counsel fees, as well as a direction that the husband pay her life insurance and medical insurance for the children of the marriage.
On September 30, 1988, the Court (Aldo A. Nastasi, J.) granted the wife a judgment of divorce on default. With respect to the issue of equitable distribution, the judgment states, in relevant part :
ADJUDGED AND DECREED that the Family Court shall have concurrent jurisdiction with this Court with respect to all future applications pertaining to support, custody, visitation and maintenance, and it is further
ADJUDGED AND DECREED that the parties have heretofore resolved all questions of equitable distribution pursuant to Section 236(B)(5) of the Domestic Relations Law.
Notably, both the Finding of Fact and Conclusion of Law and the Judgment of Divorce are silent as to the issues of child support and spousal maintenance.
There is no indication in the County Clerk's file that the Judgement of Divorce was received by or served upon any party.
In opposition to the husband's motion in this action, the wife notes that she did initiate a legal separation with the help of the Legal Aid Society in 1988. At that time she was seeking child support and spousal support. The wife contends that she did not know that the judgment of divorce had been granted. The wife states that in 1988 she called the Legal Aid Society to get the status of her action and was told that no papers had been filed on her behalf. The wife argues that when the husband commenced this 2010 divorce action he could have discovered the pre-exiting judgment of divorce. Nevertheless, it was only after receiving this Court's July 18, 2012 decision awarding her spousal maintenance that the husband sought to dismiss the action he himself commenced.
The wife also moves for an award of attorney's fees. In her affirmation in support of this application, the wife's attorney contends that she is entitled to an award of fees because she has expended significant time and effort litigating this action which the husband now seeks to have dismissed.
[*3]DISCUSSION
The Husband's Motion to Set Aside the Order and Dismiss the Action
At the outset, the Court notes that a valid Judgement of Divorce was signed and filed with the Clerk of the Court in 1998. Thus, the parties' marriage was dissolved almost 25 years ago. Thus, the husband cannot maintain an action for divorce when he is already divorced. (See generally De Ganay v. De Ganay, 261 AD2d 175, 689 N.Y.S.2d 501
[1st Dept 1999][Wife's New York action for divorce dismissed because parties were previously divorced in France.])..
In Dayanoff v. Dayanoff (96 AD3d 895, 946 N.Y.S.2d 624 [2nd Dept 2012]), the Appellate Division Second Department stated: Typically, res judicata, or claim preclusion, requires that " once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy' " ( Xiao Yang Chen v. Fischer, 6 NY3d 94, 100, 810 N.Y.S.2d 96, 843 N.E.2d 723, quoting O'Brien v. City of Syracuse, 54 NY2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158). "In the context of a matrimonial action, [the Court of Appeals] has recognized that a final judgment of divorce settles the parties' rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated" ( Xiao Yang Chen v. Fischer, 6 NY3d at 100, 810 N.Y.S.2d 96, 843 N.E.2d 723).
Here, there is no dispute that the parties' marriage was dissolved by the 1988 Judgement of Divorce. Any subsequent action by the husband to obtain a divorce is invalid. Thus, this Court's decision dated July 18, 2012 is vacated and the action dismissed.
Accordingly, the husband's motion to set aside the July 18, 2012 decision and order and to dismiss the action is GRANTED.
The Wife's Motion for Attorney's Fees
To impose an award of attorney fees and sanction for frivolous conduct in a matrimonial action, the trial court must specify in a written decision the conduct upon which award is based, reasons why it found conduct to be frivolous, and reasons the sanction is fixed in amount indicated. (See Rennie-Otote v. Otote, 15 AD3d 380, 790 N.Y.S.2d 62 [2nd Dept 2005]; N.Y.Ct.Rules, § 130—1.2).
Here, the husband commenced this divorce action when he was already [*4]divorced. He had knowledge of the prior action because he was served with the summons and complaint and notice of motion in 1988. Yet, rather than locate the 1988 Judgement of Divorce, he commenced this action. Interestingly, the husband was not able to locate the 1988 Judgment of Divorce until he received this Court's July 18, 2012 order directing him to pay his former wife, inter alia, lifetime maintenance.
The Court finds that the husband's act of commencing this action without first discovering the outcome of the 1988 action was frivolous and resulted in the unnecessary expenditure of time and money. Moreover, the husband's motion seeking to set aside the order and dismiss his own case did not even contain the 1988 judgment of divorce or the index number of that case thereby requiring additional unnecessary expenditure of judicial resources. Notably, the wife's court appointed attorney spent no fewer than 72 hours on this case.
Accordingly, the Court GRANTS the wife's application for attorneys fees and awards her legal fees in the amount of $7,500 to be paid by the husband within 30 days of the date of this Order.
Dated: White Plains, New York
March 14, 2013
HON. WILLIAM J. GIACOMO, J.S.C.
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