N.B. v F.W.

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[*1] N.B. v F.W. 2019 NY Slip Op 29005 Decided on January 4, 2019 Supreme Court, New York County Hoffman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 4, 2019
Supreme Court, New York County

N.B., Plaintiff,

against

F.W., Defendant.



XXXXX



Attorneys:

Harriet Newman Cohen, Esq., Kristen E. Marinaccio, Esq. of Cohen Rabin Stine Schumann LLP for Plaintiff Wife N.B.

Nina Epstein, Esq., Jacqueline Perez, Esq. of Goldweber Epstein LLP, Attorneys for Defendant Husband F.W.
Douglas E. Hoffman, J.

In this action for divorce and ancillary relief, defendant F.W.*[FN1] (the "Husband") moves pursuant to C.P.L.R. § 3211(a) for an order dismissing the summons and verified complaint for failure to state a cause of action, contending that the parties are not legally married.



Plaintiff N.B. (the "Wife") cross-moves for an order: (1) pursuant to C.P.L.R. § 3001 declaring the parties' 2005 Pennsylvania marriage valid; (2) pursuant to 22 N.Y.C.R.R. 130-1.1(a) ordering defendant to pay plaintiff's reasonable costs, including counsel fees, incurred in responding to defendant's frivolous motion to dismiss and for the declaratory judgment branch of the instant cross motion; (3) pursuant to 22 N.Y.C.R.R. 130-1.1(b) sanctioning defendant and/or his counsel for the filing of a frivolous motion; and (4) pursuant to Domestic Relations Law § 237(a) granting plaintiff interim counsel fees in the amount of $85,000 for her legal fees incurred since the inception of the matrimonial action to date, without prejudice to subsequent interim counsel and expert fee application, as needed and authorized by statute and case law.

For the following reasons, the motion is denied and the cross motion is granted in part and denied in part.



Background

The following is a recitation of material undisputed facts from the parties' submissions, unless otherwise stated. On ***, 2005, the parties had a marriage ceremony in ***, France. Since that ceremony, the parties have lived in New York and have had two children together, ***, born on ***, and ***, born on ***. Though the parties were living in New York at the time of the 2005 marriage ceremony, they applied for a marriage license in Pennsylvania in order to [*2]apply for a "self-uniting license", also known as a "Quaker license."*[FN2] level="1"> Neither party argues that Pennsylvania had a "residency" requirement for a marriage license. A self-uniting license does not require an officiant to preside over the ceremony, but requires only the parties' signatures and those of their witnesses.

Husband argues that their marriage cannot be valid, at least in part because of the following terms listed on their marriage license: "Void unless used 60 days from Issue Date (issued ***/2005)" and with blanks for the parties to fill in the city and county of the marriage, but listing "Pennsylvania" as the pre-filled-in state of the location of the marriage (their ceremony fit within the date window, but took place in France, not in Pennsylvania) (see Husband Aff., Ex. A).

After they obtained their marriage license, the parties flew to France, where they were joined by family and friends for the ceremony and celebration. The parties exchanged vows and signed the Pennsylvania marriage license in front of their two witnesses in ***, France, and had a reception with their guests. The parties admit that they filled out the marriage certificate incorrectly stating that they self-united themselves in Philadelphia, Pennsylvania, rather than in France (id.). The parties filed the marriage license in Philadelphia and a marriage certificate was issued (see Husband Aff., Ex. F, Certificate of Marriage Record dated ***, 2015).

The parties then returned to New York, where they "held themselves out" as husband and wife. (Wife Aff. at 3). They filed federal and state joint tax returns as a married couple for every year from 2005 through 2016. (Id.). In 2015, they purchased a house in *** County, New York State, and took title jointly as tenants by the entirety, as married spouses. (Id.). Husband added Wife to his dental insurance plan and represented to the plan that she was his spouse. (Id.). They had two children together, born in *** and in ***. Apparently, both believed they were married: Husband states that he "realized" the marriage may not be valid only when he met with his attorneys in the current action, while preparing his answer to the complaint (Husband Aff., ¶ 5).

In his motion, Husband contends that the purported marriage between the parties is not valid in either the States of New York or Pennsylvania, or in France, and, therefore, the instant divorce action commenced by plaintiff must be dismissed. Wife counters that Husband is estopped from denying the validity of the parties' marriage as a consequence of his previous sworn assertions in federal and state tax returns filed for more than a decade representing that the parties were, in fact, married. In addition, Wife argues that the alleged legal defect claimed by Husband is not sufficient to invalidate the parties' marriage under either Pennsylvania or New York law, and that Husband does not provide sufficient French legal authority to demonstrate that the marriage would be invalidated under French law, either.



Discussion

On a motion to dismiss pursuant to C.P.L.R. § 3211, the plaintiff's allegations are accepted as true and accorded "the benefit of every possible favorable inference" (Leon v. [*3]Martinez, 84 NY2d 83, 87 (1994)). The court must "determine whether a cognizable cause of action can be discerned therein, not whether one has been properly stated . . . . However, the complaint must contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory." MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 AD3d 836, 839, 929 N.Y.S.2d 571 (1st Dept. 2011) (internal quotation marks and citation omitted).

Husband argues that the parties are not validly married. This is a threshold issue because if the marriage is found to be invalid, there can be no action for divorce.



Estoppel Based on Prior Tax Returns

The parties filed joint federal and New York State tax returns, as married spouses, for twelve filing years, from 2005 through 2016. The Wife argues that Husband is therefore estopped from denying the validity of the parties' marriage as a consequence of his previous sworn assertions in the tax returns that the parties were, in fact, married. Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 422, 909 N.E.2d 62 (2009) ("party to litigation may not take a position contrary to a position taken in an income tax return"); see also Goldwater v. Amicus Assoc. L.P., 2019 NY Slip Op 00022 (1st Dept. Jan 3, 2019) (same). The Court of Appeals in Mahoney-Buntzman held that a divorcing litigant, who previously declared certain funds as a "settlement agreement" in his sworn tax returns, could not recharacterize those funds in his matrimonial litigation, so as to attempt to change equitable distribution. The Court of Appeals stated that "(w)e cannot, as a matter of policy, permit parties to assert positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns." (Id.). Here, too, it would be inappropriate to allow Husband to argue a position that is contrary to twelve sworn income-tax returns (twenty-four returns if New York State and federal returns for each of the twelve years are counted separately).*[FN3]

The court notes, however, that merely filing tax returns as a married couple would not, in and of itself, create a valid marriage where otherwise there would be none (i.e., not the equivalent of a common-law marriage or similar), as the court could not "create" a marriage in a case where there is none.

As discussed below, however, the court finds that there to be a valid marriage.



Conflict of Laws on the Validity of the Marriage

The threshold issue presented by Husband is whether the parties' union constitutes a valid marriage. The laws of France, Pennsylvania, or New York are potentially at issue: The parties obtained a marriage license in Pennsylvania, had a marriage ceremony and reception in France, were issued a marriage certificate in Pennsylvania, and lived in New York throughout the duration of what both apparently thought of as their thirteen-year marriage, where they had two children, filed taxes, purchased a home, and held themselves out as a married couple.

In order to decide whether the laws of France, New York, or Pennsylvania apply, the [*4]court must first determine whether there is an "actual" conflict between the jurisdictions' laws in the case, before engaging in a choice of law analysis: if "no conflict exists between the laws of the jurisdictions involved, there is no reason to engage in a choice of law analysis." Elson v. Defren, 283 AD2d 109, 114, 726 N.Y.S.2d 407 (1st Dept. 2001). Therefore, the initial question is whether there is a difference between the laws of France, New York, and Pennsylvania on whether the marriage would be invalidated.



France

Husband does not provide sufficient information for the court to apply French law. Husband argues that the marriage is not valid under French law, and includes a website to support his proposition (Reply Aff. at 4, citing Ex. B, "Marriage and PACS (civil partnerships) in France"; although website address and date accessed are not provided, the website appears to be from the United States Embassy in Paris, France). Husband does not offer either substantive French law, an analysis of the French law by an expert, analysis of why French choice of law would apply, or other sufficient information to this court to demonstrate whether the marriage would be valid under French law.

C.P.L.R. § 4511(b) permits the court to take judicial notice of a law of a foreign country under certain circumstances, but courts "shall" take such notice under C.P.L.R. § 4511(b) only if "a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it¼" Husband's submission cites a website, apparently authored by the United States Embassy, not the French government, which discusses a summary of possible requirements, but does not provide the substantive underlying law or a reasoned legal analysis by an individual expert, and this website cannot be sufficient to comply with the second, "sufficient information," prong of C.P.L.R. § 4511(b). The "sufficient information" prong is exacting, and trial courts have frequently refused to take judicial notice of foreign laws that are not appropriately presented. See e.g., MBI Int'l Holdings Inc. v. Barclays Bank PLC, 151 AD3d 108, 116, 57 N.Y.S.3d 119, 125-126 (1st Dept. 2017) (upholding dismissal of fiduciary-duty allegations that relied on foreign law because plaintiffs "have failed to allege with particularity the applicable Saudi law and only generally discuss" the relevant Saudi legal concepts; New York forum law applied, citing C.P.L.R. § 3016(e) and C.P.L.R. § 4511); Warin v. Wildenstein & Co., 297 AD2d 214, 215, 746 N.Y.S.2d 282, 282-283 (1st Dept. 2002) (upholding trial court's decision, declining to apply French law because plaintiff's expert did not explain his conclusions and provided only some, but not all, of the jurisprudence he relied on, a "gap that (made) it impossible to decide" the legal question presented). Cf., HSBC Guyerzeller Bank AG v. Chascona N.V., 42 AD3d 381, 841 N.Y.S.2d 11 (1st Dept. 2007) (upholding trial court's application of English substantive law where the parties "made substantial submissions interpreting a foreign law"); Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304 (S.D.NY 2018) (discussing detailed Italian law expert reports submitted by both parties, and applying New York choice-of-law test to determine whether there is a conflict between substantive Italian law as opined by the experts and New York law).

Here, Husband did not provide the court with relevant French law or analysis, let alone "sufficient information" about the alleged French law for the court to take judicial notice of the foreign law. C.P.L.R. § 4511(b). Therefore, this court does not have sufficient information to determine whether the marriage could be invalid under French law or whether French courts would apply French law to interpret the marriage's validity.

Additionally, where, as here, the parties do not provide sufficient support to prove the [*5]foreign law sought, then, "the parties have consented that the forum law be applied to the controversy." Bank of NY v. Nickel, 14 AD3d 140, 148-149, 789 N.Y.S.2d 95, 101-102 (1st Dept. 2004) (holding that defendant did not "prove" foreign law when it did not "state the substance€"as opposed to a mere citation of the law, on the one hand, or a verbatim reproduction of the statute, on the other€"of the foreign law," and thus, foreign-law defense failed "as a matter of law," and defendant was considered to have consented that New York and federal "forum law be applied to the controversy") (internal citations omitted); see also Minovici v. Belkin BV, 109 AD3d 520, 525, 971 N.Y.S.2d 103, 109 (2d Dept. 2013) (upholding trial court's application of New York law because "plaintiffs failed to plead the substance of the foreign law to be applied, and their opposition papers failed to provide sufficient information concerning the foreign law at issue"); Ponnambalam v. Sivaprakasapillai, 35 AD3d 571, 574, 829 N.Y.S.2d 540, 542 (2d Dept. 2006) (same); MediaXposure Ltd. (Cayman) v. Omnireliant Holdings, Inc., 29 Misc 3d 1215(A), 1215A, 918 N.Y.S.2d 398, 398 (Sup. Ct. NY Co. 2010) ("I am reluctant to rely on plaintiff's limited submissions alone to take judicial notice of the law of a foreign nation concerning what are complicated issues of law," where plaintiff submitted only "a few cases on the English Law claim of dishonest assistance, and a short excerpt from a treatise"); Matter of Edwards, 114 Misc 2d 703, 708, 452 N.Y.S.2d 293 (Sur. Ct. Onondaga Co. 1982) ("To take judicial notice without certainty of what the law of Mexico is on the subject . . . may be an abuse of discretion"). Therefore, for purposes of the present motion, the court will not apply French law.



New York

Defendant's counsel argues that "the validity of a marriage is determined by the laws of the state or county in which it was performed" (quoting Ponorovskaya v. Stecklow, 45 Misc 3d 597, 603, 987 N.Y.S.2d 543 (Sup. Ct. NY Co. 2015)). It has long been held "that in deciding whether to recognize a marriage that occurred in a sister state, the critical question is whether the marriage would be valid where contracted." C.M. v. C.C., 21 Misc 3d 926, 928 (Sup. Ct. NY Co. 2008); see also Matter of Watts, 31 NY2d 491, 495, 294 N.E.2d 195 (1973); Brawer v. Pinkins, 164 Misc 2d 1018, 1022, 626 N.Y.S.2d 674 (Sup. Ct. NY Co. 1995) ("(i)t is logical to afford to the courts of the State where the marriage is contracted the authority to decide if it is valid. That State has the most substantial contacts to the marriage contract itself")).

However, the Second Department has held that "(t)he validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage" (Matter of Farraj, 72 AD3d 1082, 1083-1084, 900 N.Y.S.2d 340 (2d Dept. 2010) quoting Restatement (Second) of Conflict of Laws § 283 (1)). In Farraj, in May 2003, the couple participated in a formal marriage ceremony according to Islamic law at the home of petitioner's brother in New Jersey. An Imam came from New York to New Jersey to solemnize the marriage. After the ceremony, a wedding celebration took place in New York. The parties, however, never obtained a marriage license. After the ceremony and celebration, the couple domiciled in New York until the decedent's death in 2007. Petitioner filed, in Surrogate's Court, a petition to compel an accounting of decedent's estate. The estate moved to dismiss on the ground that the petitioner lacked standing as a surviving spouse since the petitioner's marriage to decedent was invalid under New Jersey law. In New Jersey, there is an explicit statute that provides that the failure to obtain a marriage license renders a "purported marriage absolutely void" (id. at 1083, citing NJ Stat Ann § 37:1-10). By contrast, in New York, while the D.R.L. deems it necessary for all persons intending to be [*6]married to obtain a license (D.R.L. § 13), a marriage is not void for the failure to obtain said marriage license if the marriage is solemnized (D.R.L.§ 25).

In Farraj, the Second Department upheld the validity of the marriage, stating that: (1) the parties "had a justified expectation that they were married;" (2) the only reason the ceremony was held in New Jersey was due to a requirement under Islamic law requiring that the ceremony take place in the residence of the bride's eldest male relative; (3) the intended and actual marital domicile was New York; and (4) the couple held themselves out in New York as married (id. at 1084). The Second Department, relying on the Restatement (Second) of Conflict of Laws § 283, held that "(w)hile New Jersey has an interest in enforcing its marriage requirements," the interest was not so strong where the couple immediately left the state and "lived in New York for the entirety of the marriage" (id.). The court found that despite the lack of a marriage license, the couple's marriage was valid since it was solemnized (id.). The facts in Ponorovskaya v. Stecklow, 45 Misc 3d at 608-610, are materially different from those in Farraj and the instant case. In Ponorovskaya, the court declined to apply New York law to find a marriage valid where the parties did not complete the application for a marriage license, had a "symbolic" ceremony in Mexico, knew or should have known that they were not complying with the Mexican formalities required, neither one had a justifiable "expectation that they were legally married," defendant "unequivocally knew both before and after the wedding that it did not constitute a valid marriage," (distinguishing Farraj), and although they held themselves out to be husband and wife on at least one occasion for the purposes of securing a mortgage, they otherwise consistently represented themselves as unmarried on their state and federal tax returns.

Here, similar to the parties in Farraj, the parties believed themselves to be married, resided in New York throughout the duration of the marriage, had two children in New York, filed joint state and federal tax returns, purchased a home and dental insurance as married spouses, and held themselves out as married.

New York D.R.L. § 13 requires that a marriage license be obtained prior to a marriage ceremony in New York. Even where no marriage license is obtained, however, a marriage ceremony may still be valid if it was "solemnized between persons of full age" (D.R.L. § 25). Here, the parties entered into a self-uniting marriage, where the marriage uniting ceremony takes place between the spouses, in front of witnesses, but without a separate officiant.

New York recognizes as valid marriages of "Friends or Quakers" that are "solemnized in the manner . . . practiced in their respective societies or denominations" (Matter of Hinman v. Hinman, 147 App. Div. 452, 454, 131 N.Y.S. 861 (3rd Dept. 1911), aff'd 206 NY 653, 99 N.E. 1108 (1912); see also Jackson K. v. Parisa G., 51 Misc 3d 1215(A), 2016 NY Slip Op 50660(U) **5-6 (Sup. Ct. NY Co. 2016), citing D.R.L. § 12). Here, the marriage ceremony was held, with the couple solemnizing the marriage, before two signing witnesses, and guests. The parties state that they are not members of the Friends or Quakers, and chose a self-uniting ceremony for themselves, presumably for their own reasons not stated in the affidavits.

The court's ability to hold the marriage as valid or invalid may not, however, depend on the parties' religious affiliation to members of the Friends or Quakers, or on the parties' level of religious observance. To hold otherwise would violate the First Amendment: "(t)he court has no authority to determine the validity of the alleged marriage under (religious) law; the dispute must be determined on the application of neutral principles of law and without reference to religious principles" (Jackson K., 51 Misc 3d 1215(A), at *6, citing Storfer v. Storfer, 131 AD3d 881 (1st Dept. 2015) (other citation omitted)).

The First Amendment consists of two separate and overlapping protections: "Congress shall make no law respecting an establishment of religion" (i.e., the "Establishment Clause"), "or prohibiting the free exercise thereof" (i.e., the "Free Exercise Clause"). (US Const Amend I). The Establishment Clause prohibits the state from supporting or establishing any one religious group or practice, while the Free Exercise Clause guarantees the right to freely choose one's own course with regard to religious observance. Torcaso v. Watkins, 367 U.S. 488, 492-93 (1961). The First Amendment applies to the states and state actors by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Neither statutes or state court orders may abridge free exercise. Palmore, 466 U.S. at 432 n.1.

Husband requests that the court invalidate the parties' marriage because they "have both sworn to not being religiously observant" or Quaker. (Husband Reply Aff. at 4). The court cannot deny a benefit or right to a person for not following any particular religious practice. To do so would violate the Establishment Clause. Lee v. Weisman, 505 U.S. 577, 596 (1992). Husband's argument would prefer religiously observant Quakers over individuals such as the parties here (or vice-versa, since Husband is seeking to "free" himself from a finding of a valid marriage that would have attached to him if he were religiously observant, under his argument). The New York Court of Appeals observed in Griffin v. Coughlin, 88 NY2d 674, 673 N.E.2d 98 (1996) that "(t)here is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State's power to profess a religious belief or participate in a religious activity." Id. at 686 (holding that it is a violation of the Establishment Clause of the US Constitution to condition an inmate's participation in extended family visitation on his attending a rehabilitation program that included religious tenets).

Similarly, it would be improper for the court to prefer "religiously observant" over the not "religiously observant." The Supreme Court in Estate of Thornton v. Caldor invalidated a Connecticut state law that required employers to respect a Sabbath observer's designated Sabbath day (regardless of the specific religion or which day of the week the Sabbath day was), but did not require employers to respect other employees' requested days off. The Supreme Court held that the law created a Sabbath preference, in violation of the Establishment Clause. Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985). Here, Husband comes to court and asks the court to use its state power to invalidate a marriage between the parties because they are "not religiously observant," but would presumably have the court validate the marriage if the parties were sufficiently "religious." Under Estate of Thornton v. Caldor, this would be unconstitutional.

Husband's request creates an additional First Amendment problem, by asking the court to become the arbiter of religious observance and practices. The court cannot wade into Constitutionally impermissible ecclesiastical matters in order to determine which actions are and which are not proper Friends or Quakers self-uniting ceremony or tradition. The First Amendment prohibits courts from resolving disputes over "religious doctrine." Commr. of Social Services ex rel. N.Q. v. B.C., 147 AD3d 1, 7, 43 N.Y.S.3d 342 (1st Dept. 2016) (court may not entertain petitioner's argument that the wedding ceremony did not comply with the requirements of Islam, which, according to him, require a written marriage contract) (collecting cases). In Congregation Yetev Lev D'Satmar, Inc. v. Kahana, the New York Court of Appeals held that a court may not determine ecclesiastical matters, which in that case would have required the court to decide whether a particular congregant "follows the ways of the Torah." 9 NY3d 282, 287€"88, 879 N.E.2d 1282 (2007). The court is prohibited from resolving "controversies over religious [*7]doctrine and practice." Presbyterian Church of U.S. v. Mary Elizabeth Blue Hull Mem. Presbyterian Church, 393 U.S. 440, 449 (1969); see also First Presbyterian Church of Schenectady v. United Presbyterian Church in U.S., 62 NY2d 110, 116, 464 N.E.2d 454 (1984). "The court has no authority to determine the validity of the alleged marriage under Islamic law; the dispute must be determined on the application of neutral principles of law and without reference to religious principles. . . Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct for the organization while interfering with the free exercise of the opposing faction's beliefs." Jackson K., 2016 NY Slip Op 50660(U) at *6. Here, as in Commr. of Social Services ex rel. N.Q. v. B.C. and in Jackson K., the court may not decide whether the self-uniting ceremony was sufficiently compliant with religious beliefs or practices, including whether it is required for a self-uniting ceremony in the Quaker or Friends tradition for each or either of the two spouses to be "religiously observant" members of the group.

New York has a "strong presumption of marriage," even more so when legitimacy of children is concerned:

"Where persons live and cohabit as husband and wife, and are reputed to be such, a presumption arises that they have been legally married, and this presumption, especially in a case involving legitimacy, can be rebutted only by the most cogent and satisfactory evidence" (Matter of Lowney, 152 AD2d 574, 575 (2d Dept. 1989)). That court quoted Judge Andrews from the often-cited case of Hynes v. McDermott (91 NY 451 (1883)) wherein he stated, "The presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy (of the couple's children). The law presumes marriage, and legitimacy . Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence."

Amsellem v. Amsellem, 189 Misc 2d 27, 29, 730 N.Y.S.2d 212 (Sup. Ct., Monroe Co. 2001) (collecting cases). In Amsellem, a couple was married by a rabbi in France, apparently in violation of at least some French provisions that would have required them to first obtain a civil marriage before the religious one, and their rabbi was also supposed to conform with certain provisions or face fines. The parties then returned to New York, where they lived as husband and wife for over ten years, filed tax returns, and had five children. When the wife filed for divorce, however, the husband argued that the marriage was not valid and sought to dismiss the divorce suit. The Amsellem court upheld the marriage, finding that the husband did not overcome the "strong presumption" of marriage and legitimacy, and although he was able to establish that under French law that the rabbi violated provisions and faced fines, the husband did not sufficiently prove that the marriage itself also had to be invalidated. Id.

Under New York law, even without a license, the parties' marriage may be valid (see e.g. Amsellem, 189 Misc 2d 27), D.R.L. § 25. "When (D.R.L.) § 25 is invoked to validate a licenseless marriage, consideration must still be given to a panoply of facts and circumstances extending beyond the narrow confines of the wedding ceremony itself." Devorah H. v. Stevens S., 49 Misc 3d 630, 647-648, 12 N.Y.S.3d 858 (Sup. Ct. NY Co. 2015).

Here, there is a unique set of facts presented, such that "manifest injustice would (occur) if the marriage (is) held to be void." Ponorovskaya, 45 Misc 3d at 614. As noted, the parties sent out invitations; held a marriage ceremony; exchanged vows in front of witnesses and [*8]guests; held a reception; signed and filed their marriage license (albeit with incorrect information about the location of the marriage ceremony); held themselves out as husband and wife for thirteen years; had two children whose legitimacy was never before questioned; filed joint tax returns throughout the thirteen years of marriage; purchased dental insurance and a home as a married couple; filed documents with the Department of Homeland Security as a married couple; and represented themselves as married. There is no dispute that both parties believed themselves to be married throughout. Defendant admits that it was not until he met with his attorneys that he "realized" that his marriage could potentially be invalidated (Husband Aff., ¶ 5).

Based on the foregoing, Husband has not met his heavy burden in New York to overcome the "strong presumption" of marriage and legitimacy. Thus, under New York law, the parties are married.



Pennsylvania

This appears to be a case of first impression, as Pennsylvania has not ruled on whether a marriage may be deemed valid when the parties' wedding ceremony takes place outside the state but they had obtained a marriage license and certificate within the state. Under Pennsylvania law, "(a) license issued (in the State) shall authorize a marriage ceremony to be performed in any county of the Commonwealth" (23 Pa. C.S. § 1301 (b)).

Wife argues that the Pennsylvania marriage-licensing statutes are merely directory, as opposed to mandatory, thereby not invalidating the parties' marriage:

"(i)f . . . it appears that by construing the language of the act in the particular referred to as mandatory, the purpose of the act would be so seriously impaired as to amount to a defeat in purpose, while, on the other hand, if construing it as simply directory its efficiency is preserved, the latter construction is to prevail"

(Matter of McQuiston's Adoption, 238 Pa. 304, 309-310 (1913)). However, the cases relied on by Wife all predate the 2005 abolishment of common-law marriage in the State of Pennsylvania.

DeMedio v. DeMedio (215 Pa. Super. 255, 257 (1969)), also a pre-2005 case, may be instructive, however. In DeMedio, the Pennsylvania Superior Court upheld the marriage of a woman who suffered psychotic episodes, finding that she was lucid and mentally competent on the wedding date. (Id.) The DeMedio court rejected the husband's additional argument that the marriage was void because of an invalid marriage license, by reason of her "fraudulent swearing," when obtaining the marriage license, that she was of sound mind. The court stated that Pennsylvania would not invalidate a marriage because of a "fraudulently obtained" license: Even if such false swearing had been proved, it would be immaterial to the validity of an otherwise valid marriage contract. The validity of a marriage is not affected by the fact that the marriage license may have been so fraudulently obtained. . . . Pennsylvania law also follows the rule that the marriage licensure act is directory only and not mandatory and therefore a valid marriage can be contracted without such license or pursuant to a defective or improperly obtained license. DeMedio, 215 Pa. Super. at 277.

It is important to note, however, that the DeMedio court went on to state that even if the marriage was not valid due to the failure of the license, there would be "a valid common law marriage" (id. at 277-288). After 2005, Pennsylvania ended recognition of new common-law marriages. See Pennsylvania Domestic Relations Code, 23 Pa. C. S. A. § 1103 ("No common-law marriage contracted after January 1, 2005 shall be valid.") The DeMedio case, although decided before the 2005 change, allows for the possibility of a valid civil marriage with a "defective or improperly obtained license," even without the need to invoke common-law [*9]marriage. Here, neither the parties' counsel nor the court could find a post-2005 Pennsylvania case specifically stating whether Pennsylvania would still view the marriage license requirement as directory or mandatory, and Husband has not submitted any proof that Pennsylvania courts would decide this case differently than DeMedio.

The relatively recent history of validity of same-sex marriage licenses in Pennsylvania may also be illustrative of the Commonwealth's reluctance to invalidate marriages with an already-issued marriage license and certificate. In early 2013 (prior to the United States Supreme Court's same-sex marriage decisions of United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675 (2013) and Obergefell v. Hodges, ___U.S.___, 135 S. Ct. 2584 (2015)), the American Civil Liberties Union of Pennsylvania filed a civil rights lawsuit on behalf of several same-sex couples against Commonwealth of Pennsylvania officials, Whitewood v. Corbett (No. 13€"1861) (M.D.Pa.). That lawsuit challenged the constitutionality of Section 1102 of the Pennsylvania Marriage Law, which at that time, defined marriage as "(a) civil contract by which one man and one woman take each other for husband and wife." 23 Pa.C.S. § 1102. In response, several Pennsylvania officials stated that they would not either defend the law or oppose the ACLU's lawsuit. The Clerk of the Orphans' Court of Montgomery County, Bruce Hanes, announced that he believed that the challenged provision was unconstitutional, and therefore, his office would issue marriage licenses to same-sex applicants and would accept marriage certificates of same-sex couples. Com., Dept. of Health v. Hanes, 78 A.3d 676, 679€"80 (Pa. Commw. Ct. 2013). A lawsuit was filed seeking mandamus relief to stop Hanes from issuing licenses to same-sex couples. (Id.) Pennsylvania Commonwealth Court held that although the Legislature may amend the statute, or a different lawsuit may challenge the constitutionality of the statute, the Clerk of the Orphans' Court of Montgomery County is a ministerial and not judicial actor, and therefore, may not make a determination as to whether the statute is constitutional, and he may not raise a counterclaim of unconstitutionality. The court ordered him to "cease and desist from issuing marriage licenses to same-sex applicants, from accepting the marriage certificates of same-sex couples, and from waiving the mandatory three-day waiting period in violation of the Marriage Law." Id. at 693€"94. The court did not, however, state that any marriage licenses or marriage certificates already issued by the Clerk to same-sex couples would be invalidated. Some of the same-sex couples, whose marriage licenses and certificates were issued and accepted by the Clerk prior to this ruling, subsequently sued to ensure the validity of their marriages. Ballen v. Wolf as Com., Dept. of Health, 481 M.D. 2013. By May 2014, the federal court in ACLU's Whitewood case declared the Pennsylvania law prohibiting same-sex marriage unconstitutional. Whitewood v. Wolf, 992 F. Supp. 2d 410, 415 (M.D. Pa. 2014). In September 2014, the Ballen petitioners and the Secretary of Health entered into a stipulation of settlement and dismissal, subject to the court's approval, declaring that the marriage licenses at issue were valid, albeit it as of the date of the Whitewood decision, which settlement was so ordered by the court. Ballen v. Wolf, No. 481 M.D. 2013 (Sept. 30, 2014). Although the Ballen case did not reach a decision, it is important to note that neither the 2013 Hanes case that prohibited the clerk from continuing to issue marriage licenses in contravention of the then-current law, or the Ballen case, resulted in invalidation of the already-issued marriage licenses, even though those licenses were "wrongly" issued according to the Hanes court.

Similarly, in a 2008 opinion, the Court of Common Pleas in Bucks County Pennsylvania upheld the validity of the marriage of a couple married by a Universal Life Church minister ordained over the internet. O'Neill and O'Neill, No. 08-01620-29-1 at 2, 3, 2008 Pa. Dist. & [*10]Cnty. Dec. LEXIS 135 (Ct. Com. Pl., Bucks Co., Dec. 31, 2008). The O'Neills had filed a Motion for Judgment to Confirm the Validity of Marriage Pursuant to 23 Pa. C.S. § 3306, seeking a declaration that their marriage, solemnized by a ULC minister, was valid. Pennsylvania law authorizes a "minister, priest or rabbi of any regularly established church or congregation" to preside over a marriage. 23 Pa. C.S.A. § 1503(a) (6). The court upheld the O'Neill's marriage, explaining Pennsylvania's interest in protecting the validity of marriage: (i) Pennsylvania "has expressly provided for several means of solemnization in order to ensure that members of various religious faiths, and those couples wanting a wholly secular wedding, may marry without any encumbrances," (ii) although the court was unaware of any Pennsylvania appellate decisions that have addressed the issue of ULC ministers, the court was "mindful, however, that courts of certain other jurisdictions have held that marriages performed by ULC ministers are invalid" but distinguished those jurisdictions' decisions by stating "that they construe marriage laws that are more restrictive than Pennsylvania's", (iii) Pennsylvania "encourages marriage," (iv) the O'Neill's union "contributes to the fabric of society", and (iv) the court found "no reason to invalidate their marriage as it was consecrated in good faith and in compliance with the law," adding that to "nullify such a marriage, willingly and responsibly entered into, would defy the good sense of this Court." (Id.). The court also contrasted a decision by the York County Court of Common Pleas, issued approximately a year earlier, which held that a ULC minister in that case did not comply with the Pennsylvania statute, invalidating the marriage in a case where the couple married by a ULC minister were married without any witnesses other than the ULC minister, the ULC minister was ordained within minutes and never again participated in ULC in any way, the couple did not have any children, and were married for less than a year. Heyer v. Hollerbush, No. 2007-SU-002132-Y08 (York Co., Pa., Ct. C.P. Sept. 7, 2007) (accessed at https://www.aclu.org/sites/default/files/pdfs/religion/oneillmarriage_complaint.pdf Ex. A on Dec. 29, 2018).

In the instant case, Husband has not provided the court with sufficient legal proof that Pennsylvania would invalidate the marriage in the circumstances here. He has not cited any statutory or case law that expressly holds that a marriage without a license or with a potentially problematic or defective license or certificate is void or invalid, especially under the circumstances here. Indeed, as part of his reply, Husband attaches a two-page affidavit by a Pennsylvania attorney, stating that he too did not find any law on whether the marriage would be valid or not: "Following thorough review of the relevant Pennsylvania law by my colleagues under my supervision, we have located no cases that interpret 23 Pa.C.S.A. § 1502 (self-uniting marriages) as to the issue of whether a self-uniting marriage, where the license indicates that the marriage must take place within the Commonwealth of Pennsylvania, can be validly entered into when the marriage actually takes place outside of the Commonwealth." (Hofstein Aff. at 1-2, filed as Ex. A to Reply Aff.). Mr. Hofstein does not provide or cite any Pennsylvania law for his statement that "the license indicates that the marriage must take place within the Commonwealth of Pennsylvania," other than the plain face of the preprinted license with city and county left blank, and the state Pennsylvania pretyped, as discussed supra. Therefore, this court cannot hold that under Pennsylvania law, given the facts of this case as presented, the marriage would be invalidated.

Due to the parties' extensive connections to New York, discussed supra, New York law would apply if there was a conflict between how the laws of Pennsylvania and New York would [*11]treat the validity of their marriage. There has not been, however, a showing of such a conflict, and therefore, the court will not engage in a choice of law analysis. Elson v. Defren, 283 AD2d 109, 114, 726 N.Y.S.2d 407 (1st Dept. 2001). As there has been no showing that either state would invalidate the marriage, the court finds the marriage to be valid and denies the motion.

Sanctions & Attorney's Fees

Plaintiff seeks sanctions pursuant to N.Y.C.R.R. § 130-1.1, in responding to defendant's allegedly frivolous order to show cause and pursuit of litigation in this court.

22 N.Y.C.R.R. 130-1.1 provides:

"(a) The court, in its discretion, may award to any party or attorney . . . costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct . . .. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct . . ..(c) . . . conduct is frivolous if:(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or(3) it asserts material factual statements that are false."

In determining whether conduct is frivolous, the court shall consider

" 'the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party'"

(Tavella v. Tavella, 25 AD3d 523, 524-525 (1st Dept. 2006) (citation omitted)).

Sanctions are appropriate only when a party or an attorney has abused the judicial process or wasted judicial resources by engaging in wholly frivolous litigation. The court must find, not only that the complaint was without merit in law, but also that it could not be "'supported by a reasonable argument for an extension, modification, or reversal of existing law'" (Kremen v. Benedict P. Morelli & Assoc., P.C., 80 AD3d 521, 523 (1st Dept. 2011), quoting 22 N.Y.C.R.R. § 130-1.1 (c) (1)).

Here, plaintiff argues that defendant's contention that the parties' 13-year marriage is invalid because their self-uniting ceremony was conducted outside of Pennsylvania is frivolous within the meaning of Rule 130-1.1. The court finds otherwise. This specific issue is a matter of first impression in both New York and in Pennsylvania and, therefore, it cannot be said to be frivolous, even given the tax-filings estoppel argument. The decision as to whether to award sanctions remains within the sound discretion of the court. Wagner v. Goldberg, 293 AD2d 527, 293 AD2d 527 (2d Dept. 2002). The court, therefore, will not impose sanctions against defendant, and those branches of the cross motion relating to costs and sanctions for the filing of the motion is denied.



Interim Counsel Fees

Wife seeks an award of interim counsel fees pursuant to Domestic Relations Law § 237(a) in the amount of $85,000, attaching, as a separate exhibit, redacted bills for $86,967.50 in fees and disbursements to date, with $61,982.50 still outstanding after crediting a $24,985 retainer. Wife also attaches her current Statement of Net Worth and her attorney's retainer [*12]agreement. Wife alleges that Husband is the more moneyed spouse, not only because he earns approximately $157,000 per year to her $110,916 per year, but also because he owns a 50% interest in valuable properties with his sister (which also carry a substantial mortgage) and he earns rental income from those properties, plus additional income as a consultant and day trader, including over $10,000 in 2016 dividend income, whereas she has less than $50,000 in assets in her name, some of which are retirement assets. According to Wife's Statement of Net Worth, the marital home has approximately $1 million in equity, after excluding the mortgage. (Wife SNW at 14).

Husband opposes, stating that there is no meaningful difference in their incomes, and attaches his current Statement of Net Worth and his attorney's retainer agreement. His Statement of Net Worth, however, states only "PLEASE SEE 2016 TAX RETURN ATTACHED AS EXHIBIT A" in the income section (Husband SNW at 4), and while attaching his 2016 U.S. tax return, he does not attach W-2 or 1099 statements. Therefore, the court cannot determine what Husband's income for either 2017 or 2016 was, since, for example, pretaxable pension savings deductions would be reported on the W-2 but are excluded from the income reported on the attached 1040 tax return. Additionally, the parties' jointly filed as married 2016 1040 tax return combines their incomes into a joint figure, rather than breaking out each spouse's separate salary. Husband's affidavit states that he and his sister inherited the properties in 2003, and that the [foreign] rental income goes to pay taxes and the mortgage, and that "none of the income from real estate in [foreign country] is available to [Husband or his sister] anytime soon." (Reply Aff. at § 6). He represents the [foreign] rental income (after expenses and taxes) as "*** in 2016 (and similar in previous years)," without stating what the income is in 2017 or 2018, or providing the court with a currency-translated U.S. dollar equivalent. He does not provide an approximate value of his 50% ownership of the [foreign] properties, but states that the [foreign] properties have mortgages totaling *** (Wife clarifies that these are the full mortgages on the properties, not just Husband's 50% share). Husband also states on his Statement of Net Worth that there is approximately $456,872 ($423,710 + $33,162) in two [foreign] joint accounts with his sister and lists "Real estate Income" as the source of those funds. (Compare Husband SNW at 5 with Reply Aff. at § 6). He lists additional liquid assets (stocks and cash, some inherited) titled solely in his name at $920,486. (Id. at 6). Husband's Net Worth calculation appears to subtract the entire amount of the [foreign] mortgages without assigning any of that liability to his sister, and also subtracts the entire New York mortgage, without crediting either the [foreign] or New York properties with any value, resulting in a negative $2,271,521 "value" of the properties, against cash and securities of $1,384,143, for a negative "net worth," (Husband SNW at 12), which seems an error, especially when both parties represent that there is approximately $1 million in post-mortgage equity in their New York home.

Pursuant to Domestic Relations Law § 237(a), which was amended as of October 12, 2010, the Court in an action for divorce:



. . . may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be [*13]awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding.

An award of interim counsel fees is within the sound discretion of the trial court, DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881, 518 N.E.2d 1168, 524 N.Y.S.2d 176 (1987), and the issue is controlled by the equities and circumstances of the individual case. Johnson v. Chapin, 12 NY3d 461, 467, 909 N.E.2d 66, 881 N.Y.S.2d 373 (2009). The purpose of section 237(a) is to "redress the economic disparity between the monied spouse and the non-monied spouse." O'Shea v. O'Shea, 93 NY2d 187, 190, 711 N.E.2d 193, 689 N.Y.S.2d 8 (1999). In determining whether to award interim attorney's fees, the court should review the financial circumstances of both parties, as well as all the other circumstances of the case, which may include the relative merit of the parties' positions. DeCabrera v. Cabrera-Rosete, supra. See also Yao v. Kao-Yao, 147 AD3d 624, 48 N.Y.S.3d 337 (1st Dept. 2017). "'An appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances.'" DiBlasi v. DiBlasi, 48 AD3d 403, 405, 852 N.Y.S.2d 195 (2d Dept.), lv. app. denied, 10 NY3d 716, 892 N.E.2d 862, 862 N.Y.S.2d 468 (2008), quoting Grumet v. Grumet, 37 AD3d 534, 536, 829 N.Y.S.2d 682 (2d Dept. 2007) (citations omitted). The court may also consider whether either party has engaged in litigation causing delay or unnecessary legal proceedings. Prichep v. Prichep, 52 AD3d 61, 64, 858 N.Y.S.2d 667 (2d Dept. 2008).

As stated by the court in Prichep, the interim award of fees ensures that the non-monied spouse will be able to litigate the action, and do so on an equal footing with the monied spouse. Id. at 65. Such an award "is appropriate 'to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation.'" Gober v. Gober, 282 AD2d 392, 393, 724 N.Y.S.2d 48 (1st Dept. 2001), quoting O'Shea, 93 NY2d at 193, 711 N.E.2d 193. See also Chesner v. Chesner, 95 AD3d 1252, 945 N.Y.S.2d 409 (2d Dept. 2012); Shurka v. Shurka, 68 AD3d 488, 489, 891 N.Y.S.2d 37 (1st Dept. 2009); Charpi© v. Charpi©, 271 AD2d 169, 710 N.Y.S.2d 363 (1st Dept. 2000); S.B. v. G.B., 33 Misc 3d 1212(A), 939 N.Y.S.2d 743 (Sup. Ct. NY Co. 2011). Such interim awards focus upon redressing economic disparity between the parties and ensuring that superior resources do not unbalance the scales of justice. Frankel v. Frankel, 2 NY3d 601, 607, 814 N.E.2d 37, 781 N.Y.S.2d 59 (2004), quoting O'Shea, 93 NY2d at 190. Unlike a final award of attorney's fees, when awarding interim counsel fees, the court need not conduct a detailed inquiry or evidentiary hearing. Prichep, 52 AD3d at 65.

On the limited record before it, and for the purposes of the current motion, it appears that while neither party has a substantially different W-2 salary (Wife earns approximately 70% of Husband's salary), Husband has access to significantly greater liquid assets than Wife (approximately $1,000,000 versus approximately $50,000), without taking into account retirement funds, either the [foreign] or New York real estate, or the approximately $456,872 in [foreign] joint accounts held by Husband with his sister. Husband did not dispute any specific charges on the submitted bill. Under all the circumstances, the court will therefore, grant Wife's request for $85,000 in interim attorneys' fees, without prejudice to further applications. The court notes that the parties are only at the start of their matrimonial case, and that their estates, while meaningful, are not endless. Indeed, both parties may well end up bearing the cost of attorney's fees in a diminished marital estate after a trial, as well as due to a reallocation of the fees:

If this (additional counsel-fee) award saddles the (more-monied defendant) with excessive costs, the court reserves its right to re-allocate fees after trial when the court can determine who has prevailed on which issues and examine the tote board of equitable distribution to determine a final allocation of these otherwise necessary costs. This award still leaves the (plaintiff) with 'a horse in the race' - his exposure to additional fees during trial and the potential for reallocation of fees against his interest after trial €" that should nose him €" and his soon-to-be ex-wife (who faces the same choices) €" closer to the finish line.

Kinney v. Kinney, 58 Misc 3d 1209(A) (Sup. Ct. Monroe Co. 2018).

Any pendente lite attorneys' fees' award will be subject to meaningful reallocation at settlement or after a trial, and the court encourages both sides to work together, to the extent possible, on a settlement of at least some of the financial issues.



Conclusion

Accordingly, it is

ORDERED that the motion by defendant Husband for an order pursuant to C.P.L.R. § 3211(a) dismissing the summons and verified complaint in this action for divorce is denied; and it is further

ORDERED that the cross motion by plaintiff Wife seeking a declaration that the parties' 2005 Pennsylvania marriage is valid is granted, and it is further

ORDERED that the cross motion by plaintiff for interim counsel fees is granted solely to the extent that Husband is directed to pay $85,000 directly to the firm of Cohen Rabin Stine Schumann LLP for credit to Wife's account with that firm, within ten (10) days of this order, subject to meaningful reallocation at trial or settlement, without prejudice to further applications; and the cross motion is otherwise denied; and it is further

ORDERED that parties, and counsel if any, are hereby directed to jointly contact the Part 44 court attorney to schedule a Preliminary Conference in this matter.

Any issues not addressed herein are deemed denied.



Dated: January 4, 2019

New York, NY

ENTER:

____________________________

Douglas E. Hoffman, J.S.C. Footnotes

Footnote 1:* Some dates and locations have been omitted, to protect the identity of the parties.

Footnote 2:* The Pennsylvania Legislature adopted 23 Pa. Stat. and Cons. Stat. Ann. § 1103, holding that no common-law marriage contracted after January 1, 2005 would be valid, but providing that any common law marriage otherwise lawful and contracted before that date would not be invalidated by this provision. Neither party here argues that they had a valid Pennsylvania common-law marriage before 2005.