T.P. v B.P.

[*1] T.P. v B.P. 2013 NY Slip Op 51963(U) Decided on September 13, 2013 Supreme Court, Kings County Thomas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2013
Supreme Court, Kings County

T.P., Plaintiff,

against

B.P., Defendant.



0000/13



Attorney for the plaintiff, T.P.:

Brian Perskin, Esq.

44 Court Street, Suite 1210

Brooklyn, NY 11201

Attorney for the defendant, B.P.:

Curt Arnel Esq.

16 Court Street, Suite 1007

Brooklyn, NY 11241

Delores J. Thomas, J.

The following papers numbered 1 to 10 read herein:Papers Numbered

Order to Show Cause/Cross Motion and

Affidavits (Affirmations) Annexed1 - 6

Opposing Affidavits (Affirmations) [*2]

Reply Affidavits (Affirmations)7 - 10

Upon the foregoing papers, motion sequence numbers 1 and 2 are consolidated for disposition. Plaintiff T.P. moves for an order: (1) granting her pendente lite custody of the children of the marriage, identical twins, born on January 20, 2012 (the Children); (2) pursuant to Domestic Relations Law (DRL) § 236, directing defendant B.P. to pay reasonable pendente lite child support pursuant to the Child Support Standards Act (CSSA) in the amount of $3,760.42 per month; (3) pursuant to DRL § 236, ordering defendant to pay for any and all child support add-ons, including, but not limited to, the children's educational, schooling and extracurricular activities, including, but not limited to, school supplies, school related activity fees and tutoring; (4) directing defendant to pay for any and all unreimbursed medical, hospital, dental, dermatological, orthodontia, optical, psychological (including therapy), prescription drug and pharmaceutical expenses for plaintiff and the parties' children during this action, and directing defendant to pay in full any of the foregoing bills that are presently outstanding; (5) imputing income to plaintiff in the amount of $10,000 per year; (6) imputing income to defendant in the amount of $180,000 per year; (7) pursuant to DRL § 236(5), directing defendant to pay plaintiff pendente lite maintenance in the sum of $3,987.80 per month; (8) pursuant to DRL § 237, directing defendant to pay plaintiff pendente lite counsel fees in connection with this action in the sum of $15,000; and (9) granting plaintiff leave to appear in this action by telephone. Defendant cross-moves for an order: (1) adjudging that he is not the legal father of the children born during the marriage and ordering that the birth certificates for both children be amended to remove his name as the father or, in the alternative, ordering that the parties and children undergo a desoxyribonucleic acid test (hereinafter referred to as a DNA test) to determine paternity; (2) granting his counterclaim for an annulment on default or, if necessary, setting the matter down for an inquest, due to plaintiff's failure to serve a timely reply to the counterclaim, and dismissing plaintiff's verified complaint; and (3) awarding sanctions and attorneys' fees for plaintiff's frivolous application for child support, since she has already admitted that the Children are not common to the parties herein.

Procedural Background

Plaintiff filed the summons with notice commencing the instant action on September 5, 2012.

The Parties' Contentions

Inasmuch as the resolution of defendant's cross motion will impact upon the relief demanded by plaintiff, his cross motion shall be addressed first.

Defendant's Contentions

Defendant alleges that he met plaintiff in Phoenix, Arizona, when he was on a business trip and plaintiff was working for desk services at the Hyatt Regency. They began a long distance relationship in October 2010. On June 24, 2011, plaintiff informed defendant that she was pregnant; she assured him that the children were his and insisted that she would be disowned by her family if he did not marry her. Plaintiff subsequently moved to New York and the parties started living together on August 5, 2011. On September 13, 2011, they married. On January 20, [*3]2012, the Children were born.

As the Children got older, defendant's family members began to question whether he was the father, since the Children did not look like plaintiff or defendant. Accordingly, defendant had DNA tests performed. The report, dated June 6, 2012, excluded him as the father. When defendant confronted plaintiff with the test results, she admitted that she had sexual relations with another man and conceded that defendant was not the father. Defendant separated from plaintiff; went to live with his mother in New Jersey; and had no significant contact with plaintiff thereafter, returning to the former marital residence only to retrieve personal belongings. In August 2012, defendant learned that plaintiff had vacated the former marital residence and took the Children to live with her parents in Moscow, Idaho. Thereafter, plaintiff commenced the instant action.

Defendant goes on to allege that the pleadings and proceedings in this action serve to establish that he is not the father of the Children. More specifically, in both the summons with notice that was filed on September 5, 2012, and the complaint that was filed on November 27, 2012, plaintiff seeks a judgment declaring that defendant is not the father of the children of the marriage. In his verified answer and counterclaims, dated December 12, 2012, defendant asserts that there are no children common to the marriage. Plaintiff did not file an answer to the counterclaims. Defendant further alleges that on March 11, 2013, the parties signed a preliminary conference order when they appeared before this court, which also states that "the 2 children are not the defendant's children."

Defendant accordingly seeks a judgment annulling the marriage pursuant to DRL § 140 on the ground that plaintiff falsely and knowingly represented to him that she was pregnant with his children and thereby induced him to marry her; he further avers that since the discovery of the fraud, he and plaintiff have not cohabited. Defendant also seeks the entry of a judgment annulling the marriage on the ground that plaintiff defaulted in answering his counterclaims. In the alternative, defendant seeks a judgment of divorce pursuant to DRL § 170(7), on the ground that the marriage has irretrievably broken down for a period of at least six months. In reliance upon the admissions made by plaintiff, her failure to submit an answer to his counterclaims and the report of the DNA tests, defendant also seeks an order declaring that he is not the father of the Children. In the alternative, defendant requests that an order directing that plaintiff and children submit to a DNA test be issued.

Plaintiff's Opposition

In opposition, plaintiff asserts that prior to leaving the former marital residence on August 13, 2012 and since the commencement of this action, she has repeatedly asked defendant to participate in removing his name from the Children's birth certificates so that she could obtain child support from their father. Plaintiff claims that defendant ignored her requests and will not execute the necessary papers. Plaintiff thus avers that this refusal compelled her to make the instant motion seeking child support from the man who is still legally presumed to be the children's father.

Plaintiff also annexes a Reply to Counterclaims, dated July 19, 2013, to her opposition papers.

Defendant's Reply

In reply, defendant alleges that he remains willing to cooperate with plaintiff to have his [*4]name removed from the Children's birth certificates, since he has made it clear from the start of this litigation that he is not the father. Defendant also alleges that despite plaintiff's allegations to the contrary, she has not given him any papers to sign, nor does she allege that she has taken any action to reach out to the Children's biological father in an effort to obtain child support from him. Further, defendant explains that while his attorneys were researching the issue of what actions must be taken to amend the birth certificates, plaintiff served him with the instant motion. Finally, he argues that if plaintiff truly wanted to have his name removed from the birth certificate, she would not be opposing his cross motion and seeking to obtain child support and spousal maintenance from him.

Defendant also contends that although plaintiff attaches a Reply to Counterclaims to her papers, she has been in default for over 165 days. Nonetheless, she makes no effort to establish grounds to vacate the default, i.e., a reasonable excuse for the default.

Defendant's Request for the Entry of a Judgment

Annulling the Marriage or for a Judgment of Divorce

The Law

DRL § 140(e) provides, in relevant part, that: "An action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by force or duress may be maintained at any time by the party whose consent was so obtained. . . . But a marriage shall not be annulled . . . on the ground of fraud, if it appears that, at any time before the commencement thereof, the parties voluntarily cohabited as husband and wife, with a full knowledge of the facts constituting the fraud."

In addressing the issue of the entry of a default judgment in a matrimonial action, it must be recognized that it has been repeatedly held that: "[A]lthough a party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious cause of action or defense, the courts of this state have adopted a liberal policy toward vacating defaults in matrimonial actions (see Bird v Bird, 77 AD3d 1382, 1383 [2010]; Ito v Ito, 73 AD3d 983 [2010]; De Pass v De Pass, 42 AD3d 723, 724 [2007]). In matrimonial actions, [t]he State's interest in the marital res and allied issues . . . favor[s] dispositions on the merits' (Payne v Payne, 4 AD3d 512, 513 [2004], quoting Viner v Viner, 291 AD2d 398, 398 [2002]; see Adams v Adams, 255 AD2d 535, 536 [1998]; Fayet v Fayet, 214 AD2d 534, 535 [1995]).

(Osman v Osman, 83 AD3d 1022, 1023 [2011]).

Moreover, DRL § 144 provides that a judgment annulling a marriage pursuant to DRL § 140 cannot be granted on default, on consent, where the parties have cohabited after discovering the fraud or without corroborating evidence [FN1] (see e.g. Bigaouette v Bigaouette, 135 [*5]NYS2d 719 [1954] [the mere declaration or admission of either party will not suffice to support a decree for annulment in an uncontested action]; Doll v Doll, 193 Misc 167 [1948] [the admission or confession of a spouse alone is insufficient to annul a marriage]; Palmateer v Palmateer, 193 Misc 710 [1949] [the admissions of the husband and the allegations of the wife are insufficient to warrant an annulment]; Johnson v Johnson, 189 Misc 131 [1947] [annulment is properly denied based upon only the husband's and wife's testimony]). Instead, other satisfactory evidence of facts must also be produced (see e.g. Baxter v Baxter, 11 Misc 2d 69 [1957]), so that there is a "necessary quantum of corroboration" (Guido v Guido, 12 Misc 2d 549, 551 [1958]). Where this burden is met, however, it has been held that a marriage may be annulled under circumstances where the husband was induced to marry the wife by reason of her false representation that she was pregnant (see e.g. Carlson v Carlson, 4 AD2d 700 [1957]; Gordon v Gordon, 225 App Div 822 [1929], resettled 226 App Div 672 [1929]).

Discussion

As the above discussion of the law makes clear, a marriage cannot be annulled on default. In this case, however, the court finds that defendant offers sufficient evidence to establish that plaintiff induced him to marry her by fraudulently representing that the babies that she was carrying were fathered by him. Most significant in this regard are the findings of the DNA tests that defendant submits with his moving papers that demonstrate that he is not the father of the Children.

That plaintiff fraudulently induced defendant to marry her is also supported by the parties' conduct and actions. In this regard, plaintiff allegedly told defendant that she was pregnant on June 24, 2011. Plaintiff then moved to New York on August 5, 2011 to live with defendant and they were married on September 13, 2011. Four months later, on January 20, 2012, the Children were born. After suspecting that he was not the father and receiving the results of the DNA tests dated June 6, 2012, defendant moved out of the former marital residence and shortly thereafter, in August 2012, plaintiff returned to Idaho with the Children to live with her parents. This time line is consistent with defendant's claim of fraud. Further, in opposition to defendant's assertions, plaintiff does not deny that defendant is not the father of the Children, nor does she deny that she fraudulently induced him to marry her, but instead complains that he has not cooperated in removing his name from the Children's birth certificates so that she can seek to obtain support from the biological father.

The court therefore concludes that defendant is entitled to a judgment annulling the marriage on the merits. Entry of the judgment, however, is stayed pending resolution of all [*6]remaining issues, including but not limited to, equitable distribution.

Paternity

In addressing defendant's request that the Children's birth certificates be amended to indicate that he is not the father, it must first be recognized that: "The burden of proof in a paternity proceeding rests upon the petitioner, who must establish paternity by "clear and convincing" evidence, evidence which is "entirely satisfactory" and creates a genuine belief that respondent is the father of the child' (Matter of Commissioner of Social Servs. [Patricia A.] v Phillip De G., 59 NY2d 137, 141-142 [1983], quoting Matter of Lopez v Sanchez, 34 NY2d 662 [1974]). Moreover, [a] child born during marriage is presumed to be the biological product of the marriage' (Matter of Findlay, 253 NY 1, 7 [1930]; Murtagh v Murtagh, 217 AD2d 538, 539 [1995]). This presumption is one of the strongest in the law and may only be rebutted by clear and convincing evidence tending to exclude the husband as the father or otherwise tending to disprove legitimacy (see, Murtagh v Murtagh, supra; Ghaznavi v Gordon, 163 AD2d 194 [1990])."

(Johnson v Jones, 247 AD2d 617, 617 [1998]; accord Matter of Barbara S. v Michael I., 24 AD3d 451 [2005]). Nonetheless, "the notion that the presumption of legitimacy is conclusive, such that a court would not listen to evidence casting doubt on [the] paternity' of a married woman's husband, was rejected long ago, as recognized by the Court of Appeals in Matter of Findlay (253 NY at 7)" (Matter of Marilene S. v David H., 63 AD3d 949, 950-951 [2009]).

In addressing the issue, the court must also consider the application of the doctrine of equitable estoppel. In this regard, it must be recognized that "[t]he purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted" (Matter of Shondel J. v Mark D., 7 NY3d 320, 327 [2006]). Thus, "[e]quitable estoppel has been used, as it was in Shondel J., to prevent a man from avoiding child support by claiming that he is not the child's biological father (id. at 328). In such a case, the man has represented himself to be the child's father and the child's best interests are served by a declaration of fatherhood" (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1, 5 [2010]). Also, "the doctrine of equitable estoppel is invoked in paternity proceedings "to preserve the status of legitimacy for the child"' (Matter of Felix O. v Janette M., 89 AD3d 1089, 1090 [2011], quoting Matter of Carl Henry P. v Tiwiana L., 82 AD3d 1245, 1245-1246 [2011], lv denied 17 NY3d 705 [2011], quoting Matter of Alberto T. v Tammy D., 274 AD2d 587 [2000]). Equitable estoppel is thus used to protect " the status interests of a child in an already recognized and operative parent-child relationship'" (Matter of Juanita A., 15 NY3d at 5, quoting Matter of Baby Boy C., 84 NY2d 91, 102 [1994]). "In all cases, the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the child'" (Matter of Angelo A.R. v Tenisha N.W., 108 AD3d 561, 563 [2013], quoting Matter of Charles v Charles, 296 AD2d 547, 549 [2002]).

Discussion [*7]

In this case, it is clear that defendant agreed to marry plaintiff based upon her fraudulent representation that he was the father of her Children. It is equally clear that the DNA test results exclude defendant as the Children's biological father, so that his acknowledgment of paternity was undeniably due to a material mistake of fact (see generally Matter of Oscar X. F. v Ileana R. H., 107 AD3d 795, 796 [2013], citing Matter of Derrick H. v Martha J., 82 AD3d 1236, 1237-1238 [2011]; Matter of McCoy v Briggs, 22 Misc 3d 1110[A]; 2009 NY Slip Op 50079[U] [2009]). Further, plaintiff does not deny defendant's claim that she admitted that she had a sexual relationship with another man and that the man was the Children's father. Thus, there is sufficient evidence before the court to establish that defendant is not the biological father of the Children.

The court also finds that this is not a case where equitable estoppel should serve to preclude defendant from denying paternity. More specifically, there can be no finding that defendant played a significant role in raising, nurturing or caring for the Children, since he left the former marital residence, plaintiff and the Children immediately upon learning that he was not the father when the Children were less than six months old (see generally Matter of Commissioner of Social Servs. v Julio J., 20 NY3d 995 [2013]). Similarly, there is no evidence that plaintiff " provided food, clothing and shelter for the [Children] for most of [their] life' (Matter of Edward WW. v Diana XX., 79 AD3d 1181, 1183 [1990]) or otherwise carried out all [the] traditional responsibilities of a father' (Matter of Kristen D. v Stephen D., 280 AD2d at 719, n3 [2001])" (Matter of Starla D. v Jeremy E., 95 AD3d 1605, 1607 [2012], lv dismissed 19 NY3d 1015 [2012]). Thus, there is no showing that the Children "would suffer irreparable loss of status, destruction of [their] family image, or other harm to [their] physical or emotional well-being if this proceeding were permitted to go forward" (Matter of Starla D., 95 AD3d at 1607 [citations omitted]).

Accordingly, the court finds that defendant has established that he is not the father of the Children and is entitled to a judgment so stating (see generally Matter of Andre Asim M. v Madeline N., 103 AD3d 500, 501 [2013]; PT v JR, 17 Misc 3d 1109(A), 2007 NY Slip Op 51887(U) [2007]).

Defendant's Application to Amend the Children's Birth Certificates

The Parties' Contentions

In seeking to have the Children's birth certificates amended, defendant relies upon his showing that he is not the father of the Children.

In opposition, plaintiff argues that in Idaho, when the mother is married to someone other than the father when a child is born, the husband, or defendant in this case, must sign an acknowledged form to name the biological father as the legal father. She further argues that defendant refused the requests made by her attorney that he remove his name from the Children's birth certificates.

Discussion

Since the Children were born in New York City, defendant must comply with the Rules of the City of New York in order to obtain the relief sought. Pursuant to Rule § 207.01(a), an "[a]pplication for amendment of a birth certificate shall be made by the parents or surviving parent, or by the legal guardian of the person whose birth certificate is to be corrected or by the person if such person is 18 years of age or over and his parents are dead." Here, since the [*8]application is made only by defendant, who has established that he is not the father of the Children, and not by the Children's parents, the Department of Health does not have the statutory authority to amend the birth certificate (see Arnold v Department of Health, 174 AD2d 409, 410 [1991]).

In the alternative, a new birth certificate may be issued pursuant to Rule § 207.05(a)(2), when "[n]otification is received by the Department from the clerk of a court of competent jurisdiction or proof is submitted of a judgment, order or decree relating to the parentage of the person." Herein above, this court has determined, based upon the proof submitted, that defendant is not the father of the Children (see generally Montepagani v New York City Dept. of Health, Div. of Vital Records, 85 AD3d 474, 475 [2011] [petitioner appropriately rebutted the presumption of legitimacy by clear and convincing evidence in order to have her ostensible father's name removed from her birth certificate]).

Accordingly, defendant shall settle an order to be submitted to the Department of Health directing the issuance of a new birth certificate for each of the Children, removing his name as their father and indicating that the surname of each child is that of plaintiff, their mother.

Plaintiff's Request for Temporary Maintenance

Plaintiff's Contentions

In support of this request, plaintiff alleges that she is in dire need of financial assistance and has no one to look to but for defendant. Plaintiff goes on to argue that the court should impute income in the amount of $10,000 per year to her, since she is now a single mother of two very young Children and is unable to work full time because she cannot afford day care. Plaintiff further avers that defendant earned $185,467 in 2011 and only $120,904 in 2012, as is evidenced by copies of his W-2 Statements. Plaintiff also alleges that defendant earned a bonus of $25,253 in 2013, as is evidenced by a copy of an earning statement dated February 22, 2013. Plaintiff thus contends that defendant's 2012 W-2 Statement is inaccurate and that the court should impute earnings to him in the amount of $180,000, which would reflect his earnings in 2011. Plaintiff concludes that in calculating defendant's temporary maintenance obligation in accordance with the statute, defendant should be ordered to pay $2,416 per month if maintenance is calculated on his actual income, or $3,987 per month of income if the amount of $180,000 per year is imputed to him.

Defendant's Contentions

Defendant argues that because this marriage was of short duration, less than nine months, and because plaintiff lied to him to induce him to marry her, her request for an award of maintenance should be denied. Defendant also opines that since plaintiff will not likely succeed in obtaining an award of durational maintenance in the judgment disposing of this action, if she is granted an award of temporary maintenance, she will endeavor to drag out the litigation so that she will be able to continue to receive pendente lite maintenance.

Further, defendant argues that plaintiff is capable of being self supporting and had been earning $22 per hour prior to the birth of the Children, or $45,760 per year, if she works on a full time basis. He further notes that plaintiff is currently residing with her parents in a five bedroom home. Since her father works as the Senior Public Information Officer for the College of Veterinary Medicine of Washington State University and her mother works as a nurse, he believes that plaintiff is living quite comfortably. Defendant thus concludes that if the court [*9]imputes income to plaintiff based upon the receipt of free housing, her income if she was working full time and the government benefits that she receives, her income would be $59,920 per year ($1,100 per month for rent and utilities, equals $13,200; plus potential earnings of $45,760; plus $960 that she claim that she receives as a government subsidy for Women, Infants and Children).

Defendant also argues that plaintiff's request that income in the amount of $180,000 per year be imputed to him is based upon his earnings in 2011, that was a "banner year" for him. He contends that if any award of maintenance is made, it should be based upon his 2012 income of $120,905.

Discussion

As a threshold issue, the court notes that DRL § 236 authorizes an award of maintenance in the event that a marriage is annulled, apparently choosing "to attach to annulled marriages sufficient validity and significance to support an award of alimony, in other words, to serve, the same as any valid marriage would, as the foundation of a continuing duty to support the wife after the marriage is terminated" (Gaines v Jacobsen, 308 NY 218, 225 [1954], citing Johnson v Johnson, 295 NY 477 [1946]). Nonetheless, under the circumstances of this case, the court declines to order defendant to pay any temporary maintenance to plaintiff.

Pursuant to DRL § 236B(5-a)(e)(1)(q): "The court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of . . . any other factor which the court shall expressly find to be just and proper."

Herein, defendant alleges and plaintiff does not deny that she convinced defendant to marry her by telling him that he is the father of the Children and there is sufficient evidence before this court to establish that he is not. Under these circumstances, the court declines to direct defendant to pay any temporary maintenance to plaintiff, since any such award would allow her to benefit from her own fraudulent misrepresentation, a result that will not be encouraged by this court. This decision is further supported by the fact that this marriage was of short duration, only nine months. In addition, plaintiff's employment history establishes that she is capable of being self supporting. Since the main obstacle that she cites to support her claim that she is unable to work full time is that she is unable to afford child care, her proper remedy is to obtain child support from the Children's biological father.

Custody

The Parties' Contentions

Plaintiff argues that she should be awarded custody of the Children, since they have resided with her since she moved to Idaho and defendant has not made a single attempt to visit with them.

In response, defendant asserts that since the Children are not his, he does not oppose plaintiff's request for custody.

Discussion

In view of the parties' respective positions, and the above finding that defendant is not the [*10]father of the Children, plaintiff's request for sole custody is granted without opposition.

Child Support

The Parties' Contentions

In support of her request for an order directing defendant to pay pendente lite child support, plaintiff repeats the arguments that she made with regard to the parties' respective incomes as offered in support of her request for an award of temporary maintenance. She then argues that applying the CSSA Guidelines, defendant should be ordered to pay child support in the amount of $3,760 per month, plus all add-ons, including but not limited to, daycare expenses. Plaintiff also contends that until such time as the legal presumption that the Children are defendant's is set aside by the court, defendant is responsible to pay child support.

In opposition, defendant contends that since the Children are not his, it follows that if plaintiff wishes to obtain child support for her Children, she should look to the biological father of the Children.

Discussion

Having found that defendant is not the father of the Children, he has no legal obligation to support them. The above discussion also establishes that at this stage of the proceeding, and given the fact that he left the former marital residence, plaintiff and the Children when they were under six months old, there is no basis upon which this court could find that defendant is equitably estopped from denying paternity. The court also notes that in seeking child support, plaintiff's moving papers make no mention of the fact that defendant is not the Children's father. In fact, she refers to "our children" throughout the papers. Further, the court also notes that while plaintiff argues that she cannot pursue any claims against the Children's biological father until it is established that defendant is not the father, she fails to move for such relief, and she similarly fails to detail any actions taken on her part to do so. Finally, although plaintiff asserts that defendant refused to sign an acknowledgment form naming the biological father as the legal father, defendant denies being presented with any such document. Moreover, it is not clear to this court how an affidavit of any kind from defendant would be sufficient evidence to establish the identity of the Children's father.

Attorneys' Fees

The Parties' Contentions

In support of her request for attorneys' fees in the amount of $15,000, plaintiff argues that defendant is the monied spouse, earning in excess of $120,000 per year, and she earns less that $20,000 per year and receives government benefits to feed the Children. She thus concludes that without an award of attorneys' fees, she will be unable to defend her rights in this action.

In addressing plaintiff's request for attorneys' fees, defendant alleges that she is asking for three times the amount of her original retainer and twice the amount that he has paid his attorneys. He also argues that no counsel fees should be awarded for the instant motion, since it is "largely ridiculous."

Discussion

As the court found in denying plaintiff's request for temporary maintenance, any award of financial relief to her would serve only to reward her for her conduct in fraudulently inducing defendant to marry her. Moreover, as the above decision reveals, her motion for financial support has been denied in its entirety, based upon her fraud, her ability to be self supporting and the fact that she is able to seek child support from the Children's biological father. In addition, in [*11]view of the fact that this was a marriage of short duration and there are virtually no marital assets to be divided, except for the engagement ring that defendant values at $36,000, as is evidenced by defendant's affidavit and plaintiff's net worth statement, there are virtually no issues to be resolved. Finally, although plaintiff requests $15,000 in legal fees attributable, in large part, to making the instant motion, she fails to ask for any relief relating to removing defendant's name from the Children's birth certificates to enable her to obtain child support from the Children' biological father. Accordingly, an award of attorneys' fees in the amount sought is clearly excessive, in addition to being improper under the circumstances of this case.

Sanctions

The Parties' Contentions

In seeking the imposition of sanctions, defendant argues that plaintiff's motion is largely frivolous. He further points out that she fails to address the fact that she has already admitted that he is not the father of the children in her moving papers and instead, seeks to take advantage of the situation by relying upon copies of the birth certificates, which identifies him as the father. Defendant accordingly concludes that plaintiff's instant application is making false statements in an attempt to gain financial advantage.

In opposition, plaintiff argues that since defendant refuses to participate in her alleged efforts to remove his name from the Children's birth certificates, her motion is not frivolous, since she is in need of financial assistance.

The Law

"In its discretion, a court may award costs and financial sanctions against an attorney or party resulting from frivolous conduct" (Flaherty v Stavropoulos, 199 AD2d 301, 302 [1993], citing 22 NYCRR 130-1.1 [a]). Rule 130-1.1(c)(1) provides that conduct is frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" or if it "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (see generally Kornblum v Kornblum, 34 AD3d 749, 751 [2006], citing Kucker v Kaminsky & Rich, 7 AD3d 491, 492 [2004], lv denied 3 NY3d 607 [2004]). "Enforcement of the sanctions rule is essential to deter conduct that wastes judicial resources and inhibits the proper administration of the court system" (Gordon v Marrone, 202 AD2d 104, 111 [1994], lv denied 84 NY2d 813 [1995]). "Where . . . the frivolous action of counsel results in improper use of the court's time as well as that of counsel, sanctions [are] properly assessed" (CCS Communication Control v Kelly Intl. Forwarding Co., 166 AD2d 173, 175 [1990]).

Discussion

The court finds that plaintiff's action in making the instant motion is disingenuous, since her requests for financial support from defendant have been denied. The court nonetheless declines to impose sanctions against her because in so moving, she is seeking to protect the best interests of the Children. In addition, since it appears that the parties' settlement negotiations were stalled, court intervention was needed to move this action forward.

Appearance by Telephone

The Parties' Contentions

In support of her request that she be permitted to appear in this action by telephone, plaintiff argues that she is unable to travel to New York because of her limited financial resources. In the alternative, plaintiff requests that defendant be ordered to pay all travel costs. [*12]

Defendant does not address this issue.

Discussion

In view of the limited financial resources that plaintiff alleges that she has, she is granted leave to appear in this action by telephone, pending further order of this court, in the event that her personal appearance is deemed necessary (see generally Matter of Juanita A., 15 NY3d 1).

Conclusion

Defendant is granted a judgment annulling the parties' marriage on the ground that plaintiff fraudulently induced him to marry her by telling him that he was the father of the Children; entry of the judgment is stayed pending resolution of all remaining issues, including but not limited to, equitable distribution. Defendant is also granted an order declaring that he is not the father of the Children and directing the issuance of new birth certificates so indicating; defendant is directed to settle an order, on notice, directing the Commissioner of Health and Mental Hygiene, or his designee, to issue new birth certificates removing his name as the Children's father and indicating that the Children's surname is Powell, that of the mother, plaintiff herein. Plaintiff's motion is granted to the extent of awarding her sole custody of the Children and granting her leave to appear in this action by telephone, pending further order of this court, in the event that her personal appearance is deemed necessary. All other relief requested is denied.

E N T E R,

HON. DELORES J. THOMAS, J. S.C. Footnotes

Footnote 1:DRL § 144 provides that:

"1. In an action to annul a marriage, a final judgment annulling the marriage shall not be rendered by default for want of an appearance or pleading, or by consent, or upon a trial of an issue, without proof of the facts upon which the allegation of nullity is founded. Plaintiff shall prove that there has been no such cohabitation between the parties as would bar a judgment . . .

"2. In any action, whether or not contested, brought to annul a marriage, the declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced."