Supreme Court, Kings County, September 28, 2023

Roy Persaud Bhairam, Jamaica, for defendant.

Law Offices of Stuart Salles, New York City (Stuart Tanenbaum of counsel), for plaintiff.

In the present application the court must determine if an uncontested judgment of divorce entered on default should be vacated and the action restored to the contested divorce calendar based upon the filing of clearly false affidavits by the plaintiff.

In the event of a default, or on consent, litigants have a right to access justice and dissolution of a marriage and ancillary issues without the need to enter into contested litigation. The integrity of the judicial process and the reliance on the truthfulness of sworn affidavits must be scrupulously enforced.

The court notes that plaintiff husband's current counsel, and law firm, did not represent [*2]the plaintiff husband in the uncontested divorce proceedings or participate in the drafting of the challenged uncontested divorce papers submitted to the court.

The parties married on January 23, 2008, in the County of Queens, New York. There is one child of the marriage: J.G. (D.O.B.: June 2010). Notwithstanding that it appears that neither{**81 Misc 3d at 448} party resides in Kings County, New York, the action was filed in Kings County by plaintiff husband, representing himself, on March 16, 2021. The parties were divorced pursuant to an uncontested judgment of divorce, on default, signed by J.H.O. Michael Gerstein on March 10, 2022. The grounds were Domestic Relations Law § 170 (7), irretrievable breakdown of the marriage, for a period in excess of six months where all ancillary issues are resolved.

On February 17, 2023, defendant filed an order to show cause seeking the following relief (NY St Cts Elec Filing [NYSCEF] Doc No. 1):

"A. Pursuant to NY CPLR R5105 [sic] (a) (3), to request that the Court restore to the calendar/to vacate or correct the Judgment of Divorce granted on March 10, 2022, so ordered by Honorable Michael Gerstain [sic], due to the [Plaintiff], Eyon [G.] perjuring himself by making misleading statements set forth in his Verified Complaint, Plaintiff's Affidavit, Affidavit of Service, Findings of Fact and Conclusion of Law, and Judgment of Divorce made to the Court.

"B. For sanctions as the Court deems fit, so that the [Plaintiff], [Eyon G.] must understand and any other parties that intent to commit perjury in misleading the Court with false statements as to facts, which are necessary to ensure that the Court is able to effectively do its diligent duty and make the right decisions based on true facts, not lies.

"C. For such other and further relief this Court deems proper and appropriate."

Plaintiff husband filed his opposition to defendant's order to show cause on April 3, 2023. This court held a limited postjudgment evidentiary hearing on April 11, 2023, to, inter alia, determine whether the judgment of divorce shall be set aside, and if sanctions shall be assessed against plaintiff.

Defendant's Contentions

Defendant wife contends that the judgment of divorce should be set aside because it was "based on lies." (Tr Apr. 11, 2023, at 8, lines 15-16.) She does not seek dismissal of the action; rather she seeks that the action be restored to the calendar. Defendant wife testified that the parties were married on January 23, 2008, and they have one child named J.G. (D.O.B.: June 2010). Defendant wife testified that she first learned that she was{**81 Misc 3d at 449} divorced from the plaintiff husband on January 10, 2023, when she appeared in Family Court to seek spousal support and child support from the plaintiff. Defendant wife testified that the plaintiff husband stated in Family Court that he was aware of "the child support, [but] not the spouse [sic] support because [defendant is] no longer [his] wife." (Tr Apr. 11, 2023, at 13, lines 7-9.) Defendant wife states that plaintiff husband informed the Family Court that he was divorced in Bronx County. However, defendant wife testified that when she went to Bronx County to inquire about the divorce action, Bronx County informed that there was no divorce action with her name in Bronx County. Defendant wife further testified that after the search was expanded to the other boroughs, she was informed that she was divorced in Kings County. (Tr Apr. 11, 2023, at 13, lines 18-19.)

Defendant wife stated that she came to Kings County Supreme Court to obtain the divorce documents. She testified that she was able to retrieve the following documents: summons [*3]with notice, the affidavit of service, the affidavit of plaintiff, the verified complaint and the judgment of divorce. The court took judicial notice of the documents. Defendant wife testified that she was never served, nor did she ever reside at the address listed on the affidavit of service. She also noted that she has a Social Security number and that the husband's assertion that she did not have a Social Security number was false as was the sworn statement that there are no children of the marriage. The court finds defendant wife's testimony to be credible.

Plaintiff's Contentions

Plaintiff husband testified that he commenced the divorce action. Plaintiff husband testified that he was referred to someone by the name of "Reynaldo" in Brooklyn to assist him in preparing the divorce papers. Plaintiff husband stated that he was given an "information sheet" to fill out. The "information sheet" was submitted into evidence as plaintiff's exhibit 1. The court notes that the "information sheet," which consists of one page, lists the name of a self-represented divorce company, and requests the following information: plaintiff's name, address, phone number, Social Security number, and date of birth, whether the plaintiff was employed and his annual income. The "information sheet" also requested the same information of the defendant. There is nothing in the information sheet that provides for information about children. Plaintiff testified that{**81 Misc 3d at 450} another individual named "Orlando" prepared and filed the divorce documents on his behalf.

Plaintiff husband testified that neither Reynaldo nor Orlando asked him whether he had any children. Plaintiff husband concedes that he has a total of six children, and his youngest child, J.G., is a child of this marriage. Plaintiff husband further testified that after Orlando prepared the documents he reviewed and signed the documents:

"Q: So, as far as you're aware, Orlando was the one who prepared the documents?

"A: Yes, sir.

"Q: And did he present the documents to you for review and signature?

"A: Yes, sir.

"Q: Did you sign the documents with him present?

"A: Yes, sir.

"Q: Did you review the documents that he prepared for you to sign?

"A: Yes, sir.

"Q: How closely did you review the documents?

"A: Very close.

"Q: Did you ask him any questions about the paperwork before signing it?

"A: No, sir.

"Q: When you were reviewing the paperwork, did you find it unusual that it said that you didn't have any children?

"A: Yes, sir.

"Q: Then why did you still sign the papers?

"A: I just went in and signed it. You know, I didn't question it.

"Q: Why didn't you question it?

"A: Well, I—to my knowledge, I think he knows what he's doing. So, he just ask [sic] me to sign the papers, so I didn't want to question it.

"Q: So, you reviewed them closely, but you didn't question the incorrect information that the documents contained?

"A: Yeah, because there was nothing stating that child shown on the paper that I fill [sic] [*4]out, so—." (Tr Apr. 11, 2023, at 30-32.)

Plaintiff husband failed to call either "Reynaldo" or "Orlando" or the company that assisted him in filing the uncontested{**81 Misc 3d at 451} divorce action. Thus, the court is unable to determine any culpability on their part or if they even knew of or asked the existence of a child or children.

Plaintiff husband testified that it was not his intention to mislead the court. On cross-examination, plaintiff husband conceded that he was married and divorced previously. He also acknowledged in the instant hearing that when he commenced the divorce, he was aware that all issues with respect to child support, and visitation with respect to his child with the defendant, had to be dealt with in the divorce. The court notes that the sworn notarized affidavit of the plaintiff submitted in the uncontested divorce action clearly states in paragraph (4) "there are no children of the marriage."

The court notes that while defendant seeks to vacate the judgment of divorce and restore the matter to the calendar, she does not seek dismissal of the action for failure to be properly served. Thus, the court need not reach the issue of improper service and the court deems said procedural request as a waiver of improper service.

CPLR 5015 (a) (3) provides that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: . . . fraud, misrepresentation, or other misconduct of an adverse party." A defendant seeking to vacate a judgment of divorce has the burden of establishing, by admissible evidence, the existence of fraud, misrepresentation, or other misconduct on the plaintiff's part sufficient to entitle him or her to vacatur (Thakur v Thakur, 49 AD3d 861, 861 [2d Dept 2008]). The defendant wife has met that burden.

In matrimonial actions, "the State's interest in the marital res and allied issues (such as child support and custody) have called forth a more liberal approach [to vacating a judgment of divorce], favoring dispositions on the merits" (Salley v Salley, 258 AD2d 454, 455 [2d Dept 1999], citing Shaw v Shaw, 97 AD2d 403, 406 [2d Dept 1983]; Schorr v Schorr, 213 AD2d 621, 621 [2d Dept 1995]).

"Where a defendant seeks to vacate a default pursuant to CPLR 5015 (a) (3) based on intrinsic fraud, he or she must establish a reasonable excuse for the default and a potentially meritorious defense to the action" (Matter of Mission Field {**81 Misc 3d at 452}Church, Inc., 214 AD3d 981, 982 [2d Dept 2023]). "[I]t is well established that a party seeking to set aside a judgment on the basis of fraud 'will not prevail by merely showing fraud in the underlying transaction but must show fraud in the very means by which the judgment was procured' " (Cofresi v Cofresi, 198 AD2d 321, 321 [2d Dept 1993]).

[1] Here, the defendant wife was able to establish a meritorious defense. The very means by which this judgment of divorce was procured was fraudulent. A patently false statement that "there are no children of the marriage" was stated in paragraph (4) of the verified complaint, paragraph (4) of the affidavit of plaintiff, paragraph (7) of the findings of fact and in the judgment of divorce, despite the parties having one unemancipated child of the marriage, age 13. Additionally, plaintiff husband falsely stated in paragraph (5) of the affidavit of the plaintiff that "[t]he parties have divided the [marital] property and no claim will be made by either party under equitable distribution. There is no request for maintenance as described in the notice of guideline maintenance or any other ancillary economic relief under DRL § 170 (7)."

The plaintiff husband failed to offer a satisfactory explanation for this misrepresentation and appeared to shift blame to the individual who assisted him in preparing the divorce papers. Remarkably, the plaintiff husband acknowledged during the hearing that after "carefully" reviewing the divorce papers and noticing that the papers falsely stated that there were no children of the marriage he remained silent. This court does not accept the plaintiff husband's explanation that he remained silent because he thought the individual who helped him prepare the divorce papers knew what he was doing so he did not question it. Plaintiff husband has other children for whom he has or has previously had to pay child support and was aware of the obligation.

"It is fundamental public policy in New York that parents are responsible for their children's support until age 21" (Matter of Gansky v Gansky, 103 AD3d 894, 895 [2d Dept 2013], quoting Matter of Gold v Fisher, 59 AD3d 443, 444 [2d Dept 2009]). The Child Support Standards Act (the CSSA) codified in section 240 of the Domestic Relations Law provides that the "court shall calculate the basic child support obligation, and the non-custodial parent's pro rata share of the basic child support obligation" (Domestic Relations Law § 240 [1-b] [f]). The statutory child support obligation cannot be waived or bargained{**81 Misc 3d at 453} away; the court must comply, absent a sufficient reason to deviate from the CSSA (Bast v Rossoff, 91 NY2d 723, 729 [1998]; Matter of Coger v Cusumano, 191 AD2d 493, 494 [2d Dept 1993]). Based on plaintiff husband's representation that there were no children of the marriage, and without defendant wife present to contest it, the court granted a judgment of divorce. Had the plaintiff husband not concealed an essential disclosure, such as the existence of an unemancipated child, the court would not have granted a judgment of divorce without a court-directed provision ordering child support. The court finds that defendant wife has a meritorious position, inter alia, with respect to child support^[FN1] (see Osman v Osman, 83 AD3d 1022, 1024 [2d Dept 2011]).

Furthermore, Domestic Relations Law § 170 (7) provides that a judgment of divorce may be procured on the following grounds:

"[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."

In the instant matter all of these issues do remain and the divorce itself must be vacated.

[2] The concealment was in effect also a fraud upon the court. The plaintiff husband filed a false affidavit pursuant to Penal Law § 175.30 which provides

"[a] person is guilty of offering a false instrument for filing in the second degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant [*5]with the knowledge or belief that it will be filed with, registered or recorded{**81 Misc 3d at 454} in or otherwise become a part of the records of such public office or public servant."

The fact that plaintiff husband was divorced previously and was aware of the child support requirement leads the court to find that plaintiff husband knowingly signed a false affidavit. This court does not condone the plaintiff husband's dishonesty and believes that consequences should flow from his dishonesty. Under 22 NYCRR 130-1.1 (a), a court may impose financial sanctions upon a party or attorney who engages in "frivolous conduct" (22 NYCRR 130-1.1 [a]; see Weissman v Weissman, 116 AD3d 848, 849 [2d Dept 2014]).

"[C]onduct 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." (22 NYCRR 130-1.1 [c]; see Tso-Horiuchi v Horiuchi, 122 AD3d 918 [2d Dept 2014].)

Here, the sworn, notarized statements submitted by the plaintiff husband to procure a judgment of divorce constitute "material factual statements that are false" within the meaning of 22 NYCRR 130-1.1 (c). The plaintiff husband had notice of the request for sanction. Thus, plaintiff husband will be sanctioned $500.00 for his frivolous conduct in filing a false instrument with the court, pursuant to 22 NYCRR 130-1.1, payable to the Office of the County Clerk by bank or certificate check within 60 days, with proof of payment filed with the County Clerk (see 22 NYCRR 130-1.3).^[FN2]

Ordered: An answer shall be filed within 20 days of service of a copy of this decision and order with notice of entry and the matter herein is restored to the contested matrimonial calendar.

Ordered: The matter is set down for a preliminary conference on November 8, 2023, at 2:15 p.m., in-person.{**81 Misc 3d at 455}

For all of the foregoing reasons, defendant wife's motion to vacate the judgment is hereby granted. The judgment of divorce is vacated, and action is restored to the contested matrimonial calendar, Part 5G, and the plaintiff is sanctioned the sum of $500.00. The defendant may move for counsel fees and costs associated with this application.