Feinberg v. Feinberg

• Decision Date: 26 September 1978
• Citation: 96 Misc.2d 443,409 N.Y.S.2d 365
• Parties: Audrey FEINBERG, Plaintiff, v. Herbert FEINBERG, Defendant.
• Court: New York Supreme Court

Page 365

409 N.Y.S.2d 365

96 Misc.2d 443

Audrey FEINBERG, Plaintiff, v. Herbert FEINBERG, Defendant.

Supreme Court, Special Term, Nassau County, Part V.

Sept. 26, 1978.

Holtzmann, Wise & Shepard, New York City, for plaintiff

Kaufman, Taylor, Kimmel & Miller, New York City, for defendant.

DAVID T. GIBBONS, Justice.

This action was instituted by the plaintiff to set aside a consensual migratory divorce, rendered in a court of the Dominican Republic, and the separation agreement of the parties incorporated by reference therein, upon the ground of fraud.

The plaintiff alleges that in order to induce her to enter into the subject separation agreement and to execute a power of attorney to authorize counsel to appear on her behalf in an action for divorce to be brought by the defendant in the Dominican Republic, the defendant falsely and fraudulently misrepresented and concealed the true nature and extent of his financial worth, and that in response to plaintiff's attorneys' request for information concerning defendant's financial circumstances, they were furnished with copies of defendant's income tax returns for the past three years, but the defendant fraudulently concealed from the plaintiff the existence of pending negotiations for the sale of the family wine-importing business, Monsieur Henri Company, in which he owned a one-third interest.

Plaintiff claims, further, that the separation agreement and the power of attorney were signed by her on March 20, 1972. The defendant obtained the divorce on March 24, 1972, and that to perpetuate the fraud upon her, he accelerated the negotiations relating to the separation agreement and power of attorney and delayed the consummation of the sale of the business until about three weeks after the divorce was granted.

The plaintiff states that the facts pertaining to the sale of the business were not discovered by her until a news report of the same was read by her counsel in the Wall Street Journal of April 6, 1972, when, for the first time, she learned that the selling price of the wine-importing business was $28,500,000.00. This action was thereafter commenced on June 19, 1972.

On plaintiff's motion for summary judgment and defendant's cross motion for the same relief, the plaintiff alleges that the defendant's failure to disclose such material financial information influenced her, to her detriment, to enter into this separation agreement which provided for inadequate support for herself and the children of the parties and was unconscionable, and had she been apprised of the pending negotiation for the sale of the business and the amount the defendant would receive therefrom she would neither have relied upon his statement that the support provision offered was "generous" and all that he could afford, nor would she have permitted him to "rush" her into signing the agreement.

The defendant, in opposition, contends that both parties were represented by competent counsel during the period leading up to the signing of the separation agreement and power of attorney; that he truthfully responded to the specific questions asked by plaintiff's counsel concerning his financial worth and had furnished copies of his income tax returns for the past three years; and that the plaintiff was fully aware of his interest in the family business and of certain prior negotiations for its sale.

The defendant denied the allegation that he "rushed" the plaintiff into making the contract while the negotiations for the sale were in progress and delayed the consummation of the sale until after the separation agreement and the power of attorney were signed by the plaintiff and the divorce was obtained by him.

In reversing an order of the Appellate Division, which, by a divided court, had affirmed an order of Special Term denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint, the Court of Appeals (40 N.Y.2d 124, 386 N.Y.S.2d 77, 351 N.E.2d 725), held that the dismissal was improper in view of the unresolved question as to whether the Dominican judgment of divorce could be collaterally attacked in the courts of New York and remanded the matter with a direction that before the underlying issue of alleged fraud can be determined, Special Term must pass upon the preliminary procedural question as to whether the law of the Dominican Republic would permit an attack upon its judgment or the separation agreement, or both, for fraud of the sort here alleged and, if not, whether the courts of this state would, notwithstanding, entertain such proceeding.

On plaintiff's motion for a hearing to resolve the issue of the state of the law of the Dominican Republic in accordance with the direction of the Court of Appeals and for an allowance of counsel fees, Pendente lite, to the plaintiff, the same was granted by interim order, dated December 13, 1977, to the extent that a hearing was scheduled at which the parties could submit expert testimony to enable the court to determine the above-mentioned preliminary procedural question.

Expert testimony concerning the law of the Dominican Republic was given at the hearing on behalf of the plaintiff by Henry P. de Vries, Esq., a member of the New York Bar, director of the Inter-American Law Center and Professor of Latin American Law at the Columbia University School of Law where he teaches and directs research in the civil law systems, including that of the Dominican Republic, and on behalf of the defendant by Dr. Guillermo Rodriguez, a graduate of the University of Autonoma, Santo Domingo, with a degree of Doctor of Law, and a practicing attorney admitted to the Bar of the Dominican Republic, who specializes in matrimonial law and who has participated professionally in approximately 4,000 divorces for foreign nationals and about 100 divorces for residents since his admission in 1973.

Justice is administered in the Dominican Republic by a system of civil law which is a direct adaptation of French law under the Code of Napoleon. There is no organized reporting system of legal precedents, and reliance for legal interpretation is based upon the law of France (S.M. 6). The expert witnesses referred to no reported decisions of the courts of the Dominican Republic but presented their respective opinions upon the basis of the several statutes which pertain to the law of divorce and fraud and how they would be applied by the courts of the Dominican Republic to the circumstances of this case.

The court has also read and fully considered the affidavit of Professor Henry P. de Vries, submitted on behalf of the plaintiff, and has read and fully considered the affidavits, submitted on behalf of the defendant, concerning the law of the Dominican Republic made by Dr. Manuel Ramon Ruiz Tejada, a former Chief Justice of the Supreme Court of the Dominican Republic, and by Henry H. Foster, Jr., Professor Emeritus of Law at New York University School of Law, member of the New York Bar and author of several treatises on foreign divorces and related aspects of matrimonial law.

CONTENTIONS OF THE PARTIES

The plaintiff contends (1) that conceding that the decree of divorce herein is by mutual consent of the parties and, therefore, not appealable under Article 32 of the Code of Civil Procedure of the Dominican Republic (S.M. 18), the same is, nevertheless, subject to a proceeding for "civil revision" to vacate it for fraud (dolo) under Article 480 of the code which provides for such remedy in a case where the judgment is rendered in a "contradictoria" action, and (2) that the separation agreement herein is not incorporated by reference in the divorce decree herein, and since it is not clothed with the Res judicata effect of the judgment, it may be attacked separately on the ground of fraud without consideration of the law of the Dominican Republic.

The defendant, in opposition, argues that the instant divorce decree is not subject to the remedy of "civil revision" to set it aside for fraud because it was not rendered in a "contradictoria" action within the meaning of Article 480 of the code, and that since it is not subject to attack under the laws of the Dominican Republic, it cannot be set aside under the laws of this state because the fraud alleged is "intrinsic" and not "extrinsic", which is the only kind which would permit such remedy in this action.

I. THE DECREE IS BY MUTUAL CONSENT AND THE DOMINICAN REMEDY OF CIVIL REVISION IS NOT AVAILABLE.

In defining the kind of decree which is subject to the remedy of "civil revision" as provided by Article 480, the term "Las sentencias contradictorias" is used. The translation of this phrase, as testified by plaintiff's expert and as contained in the translation of the statute which was provided in plaintiff's Exhibit 2 in evidence, defines the term as, "Judgments by appearance of the parties".

On the other hand, the testimony of defendant's expert and the translations of this statute as set forth in defendant's Exhibit C in evidence refer to the phrase as "Contradictory Decrees".

The court finds that the translation submitted by the defendant is correct for the reason that the decree herein is based upon the mutual consent of the parties as provided by Chapter II, Article 2, subd. "a" of the Code of Civil Procedure and not, as demonstrated below, the result of a contested (contradictoria) proceeding.

Under the law of the Dominican Republic there are eight different grounds for divorce. They are listed from letter "a" to "h" and include the following: a. Mutual consent; b. Incompatibility; c. Absence decreed by court in accordance with Chap. II of Title IV of the first civil code; d. Adultery; e. Conviction of crime; f. Extreme cruelty; g. Abandonment; and h. Habitual drunkenness.

The essential elements of the procedure prescribed for a divorce by mutual consent are set forth in Chapter IV, Articles 26, 27, and 28 of the Code of Civil Procedure (s...