N.B. v. F.W.
| Decision Date | 04 January 2019 |
| Docket Number | XXXXX |
| Citation | 62 Misc.3d 1012,91 N.Y.S.3d 660 |
| Parties | N.B., Plaintiff, v. F.W., Defendant. |
| Court | New York Supreme Court |
Harriet Newman Cohen, Esq., New York, Kristen E. Marinaccio, Esq. of Cohen Rabin Stine Schumann LLP for Plaintiff Wife N.B.
Nina Epstein, Esq., Jacqueline Perez, Esq., New York, of Goldweber Epstein LLP, Attorneys for Defendant Husband F.W.
In this action for divorce and ancillary relief, defendant F.W.*1 (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.
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 apply for a "self-uniting license", also known as a "Quaker license."*2
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) .
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.
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. Martinez , 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994) ). The court must MatlinPatterson ATA Holdings LLC v. Federal Express Corp. , 87 A.D.3d 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.
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 N.Y.3d 415, 422, 881 N.Y.S.2d 369, 909 N.E.2d 62 (2009) (); see also Goldwater v. Amicus Assoc. L.P. , 2019 N.Y. Slip Op. 00022, 2019 WL 80872 (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).*3
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.
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 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 A.D.2d 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.
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...
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...Molinaro v. Molinaro, 245 Cal. Rptr. 3d 402 (Ct. App. 2019). 230. Fares v. Fares, 563 S.W.3d 574 (Ark. Ct. App. 2018). 231. N.B. v. F.W, 91 N.Y.S.3d 660 (App. Div. 2019). Published in Family Law Quarterly, Volume 53, Number 4, Winter 2020. © 2020 American Bar Association. Reproduced with pe......