Decided September 15, 2008.
Nicholas Surmacz, Esq. White Case, LLP Attorney for Plaintiff, New York, New York.
Merrick J. Brodsky, Esq. Merrick Jason Brodsky, P.C. Attorney for Defendant, Brooklyn, New York.
Upon the foregoing papers, defendant Artur Vartsaba (the husband) moves for an order: (1) dismissing the complaint on the ground that he and plaintiff Olga Vartsaba (the wife) were previously divorced by a decision rendered in Ukraine; (2) dismissing the complaint on the ground of lack of jurisdiction; (3) sanctioning plaintiff for commencing a frivolous lawsuit; and (3) awarding defendant fees, costs, disbursements and attorneys' fees.
Procedural and Procedural Background
The parties were married on November 21, 1981 in Sevestopol, Ukraine. On June 14, 1984, their daughter, Victoria, was born.
On July 31, 1995, plaintiff received a letter from the United States government informing her that she had won the immigration lottery; she, defendant and their daughter thereafter sought to immigrate to the United States. On May 14, 1996, defendant commenced a divorce action against plaintiff in the Central Court, City of Simferopol, Ukraine (the Ukranian Action). On December 12, 1996, the Ukranian court held a hearing and rendered a decision dissolving the parties' marriage, which, as is relevant herein, stated that the wife "admitted the claim, she asked the court to consider the issue in her absence; and further stated that it's impossible to live together" (the Ukranian Decision).
By complaint dated April 5, 2004, the husband commenced an action in this court seeking to obtain a divorce from plaintiff (Index No. 11488/04) (the 2004 New York Divorce Action); a judgment of divorce of divorce was signed on June 17, 2004 (the New York Judgment of Divorce). On July 25, 2006, defendant remarried. Thereafter, by order to show cause dated January 16, 2007, the wife moved to vacate the judgment pursuant to CPLR 5015(a)(3). The husband cross moved for an order recognizing the Ukranian divorce, vacating the New York Judgment of Divorce and dismissing the wife's application. On May 31, 2007, the parties executed a stipulation which provided that:
"The parties to the above action hereby stipulate to void the Judgment of Divorce entered on June 17, 2004 in the above action (the "New York Action"), because Plaintiff alleges that a divorce action between the parties was commenced and finalized in the Ukraine in 1996 (the "Ukraine Action"). This stipulation is entered into for the sole purpose of voiding the Judgment entered in the New York Action, and no judgment, agreement, or other order is hereby entered by this Court in this action as to the Ukraine Action. This Stipulation does not limit or impair the rights of either party to seek redress in the Ukraine judicial system."
As is also relevant herein, plaintiff filed an "appeal request" with regard to the Ukranian Decision with the Appellate Court of the Republic of Crimea on April 16, 2007. By letter to plaintiff and defendant dated April 17, 2007, the court acknowledged receipt of the appeal. By decision dated June 5, 2007, the Crimean Appellate Court denied plaintiff's appeal as untimely because it was not filed within three months of the December 13, 1996 Ukrainian Decision.
Plaintiff commenced the instant action on March 21, 2008, seeking to obtain a judgment of divorce and other ancillary relief.
The Parties' Contention
In support of his motion to dismiss, defendant contends that at the time that plaintiff commenced the instant action, he and plaintiff were already divorced pursuant to the Ukrainian Decision. Defendant also avers that at the time that the judgment of divorce was granted, he and plaintiff were living separate and apart and had no intention of reconciling or withdrawing the action. Defendant explains that the parties' immigration applications, however, continued to indicate that the parties were married because he agreed to help the family relocate. Defendant further alleges that thereafter, he was advised that a Ukranian divorce would not be recognized in New York and he commenced the 2004 New York Divorce Action.
Defendant also submits sworn statements from Dombrovskiy Vladimir Eduardovich and Nenaltovskaya Irina Pavlovna, attorneys in Ukraine, Autonomy Crimea Republic, in which each states that they studied the Ukranian Action and determined that the court file indicates that defendant commenced a divorce action on May 14, 1996; that his wife was acquainted with and consented to the action; and that she knew of the pendency of the action because she requested that the court consider the case in her absence and she waived her presence in court in a properly notarized statement. The attorneys further opine that in accordance with Ukrainian law, the wife's statement had to be personally presented to the court, at which time she would have to present her passport so that she could be identified.
Plaintiff alleges that after she received notice that she had won the immigration lottery on July 31, 1995, she traveled to Warsaw with her husband and daughter to interview with the American authorities. The family then moved to Brooklyn in June 1996, where they lived together until her husband moved on out February 1, 2006. In 2003, plaintiff and defendant were naturalized as American citizens; on the naturalization applications, both stated that they were married and listed their marital address. In addition, the parties filed joint tax returns as a married couple from 1996 through 2003; in 2004, however, her husband told her that because he had to file for bankruptcy, it was necessary for them to file separate income tax returns.
Plaintiff further alleges that in January 2006, she began to suspect that defendant was seeing another woman; when she confronted him, he told her that they were already divorced and showed her a copy of the New York Judgment of Divorce. Plaintiff contends that she never received notice of the 2004 New York Divorce Action and that she did not appear therein; when she appeared in court to contest the New York Judgment of Divorce, her husband told her that he had secretly obtained a divorce in Ukraine on December 13, 1996. Plaintiff contends that she was similarly unaware of the divorce action commenced in Ukraine; that she did not sign or receive any documents in connection with that proceeding; and that she did not appear therein, nor could she, since she was in the United States. Plaintiff also avers that the signature on the papers submitted in the Ukrainian Action is hers, but that her husband asked her to sign blank "documents" before he left for the Ukraine in June 1996 to visit his mother, telling her that he needed her signature on papers regarding an apartment that his mother owned; she further opines that the signature of the notary on those papers is fraudulent. Plaintiff also argues that she could not have presented her passport when the papers were allegedly signed because the Ukrainian authorities took her passport when she was issued a visa to immigrate to the United States in February 1996. Plaintiff also points out what she claims are inconsistencies between the copies of the papers filed with the Ukranian court that she has in her possession and those submitted to this court by the husband.
In further support of her position, plaintiff submits affidavits from Yuliya Yur'yevna Dorofeyeva, an attorney in Ukraine, in which she states that her review of the papers filed in the Ukrainian Action does not reveal any return receipts from plaintiff that would demonstrate that she received notice of the documents filed therein. Dorofeyeva also states that the husband never registered the termination of marriage certificate required by the Ukrainian authorities until February 17, 2007, and that in her opinion, the parties were therefore not legally divorced until the certificate was filed.
In reply, defendant refutes each argument raised by plaintiff. Defendant also attaches a sworn letter from B.B. Babin, A.I. Safonov and I.N. Navrotskaya, and a second sworn letter from Safonov, Navrotskaya and D.O. Borisov, members of the Legal Association of the Zheleznodorozny County, City of Simferopol. In these statements, the attorneys again state that one can only appear in a divorce action personally, by providing a copy of a valid passport as identification. The attorneys conclude that all legal requirements were met in dissolving the marriage between plaintiff and defendant in Ukraine and that the appeal to amend or vacate the decision was denied. They further assert that the file has been destroyed due to the expiration of the Statute of Limitations for the storage of documents, so that the decision cannot be amended by any court in Ukraine.
The attorneys also are of the opinion that defendant should have applied to the Public Civil Status Registration Authority at his place of residence to register the Ukrainian Decision, since the date of the divorce is the date of the registration, when a Marriage Dissolution Certificate is obtained. Because the decision was not registered, however, the marriage was not terminated until January 1, 2004, in accordance with the new Family Code, which was adopted on January 1, 2004. Pursuant to paragraph 2, article 114 of that Code, all marriages dissolved by court decisions which were not registered before the effective date of the new code were considered to be terminated as of the date of adoption. Hence, Dorofeyeva's opinion that the marriage was not terminated until the decision was registered on February 17, 2007 is erroneous.
Defendant also annexes sworn statements from Murad and Temilla Temish, the parties' neighbors when they resided in Brooklyn, in which each alleges that the wife told them about her divorce from the husband in approximately June 2004. The husband also submits a sworn affidavit from Yefim Kerzhner, who had employed defendant in his restaurant for approximately ten years, in which Kerzhner alleges that in September 2004, the restaurant declined the wife's request to make a reservation for a "Happy Divorce" banquet for her friends to celebrate her divorce, out of respect for defendant. Kerzhner thus opines that the wife knew about the divorce as early as 2004.
Recognition of the Ukrainian Judgment of Divorce
As this court noted in the recent decision rendered in Tsirlin v Tsirlin (19 Misc 3d 1132A, 2008 NY Slip Op 50981U ), a "divorce action may lie in New York only if the parties are still married'" ( id. at 5, quoting Gotlib v Ratsutsky, 83 NY2d 696, 699). Hence, if the Ukrainian Decision is valid and binding on the parties herein, the wife's action for a divorce must be dismissed.
In deciding whether the Ukranian Decision should be recognized by the courts of this State:
"It is well settled that [a]lthough not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States' ( Greschler v Greschler, 51 NY2d 368, 376). However, in order for a divorce decree of a foreign court to be accorded recognition in this State, the foreign court must have had in personam jurisdiction over both spouses ( see, Greschler v Greschler, supra, at 376)."
( id. at 5-6, quoting Aranoff v Aranoff, 226 AD2d 657, 658 [2 Dept., 1996]; see also In re Estate of Lovick, 201 AD2d 736, 737 [2 Dept., 1994] [New York courts will generally accord recognition to bilateral foreign judgments of divorce under the doctrine of comity]). Hence, comity should be extended to uphold the validity of a foreign divorce decree absent some showing of fraud in the procurement or that recognition of the judgment would do violence to some strong public policy of the State ( see e.g. Schaeffer v Schaeffer, 294 AD2d 420, 421 [2 Dept., 2002]; Azim v Saidazimova, 280 AD2d 566, 567 [2 Dept., 2001]). Further:
"[A] departure from settled comity principles can be justified only as a rare exception . . . Some evidentiary basis to support the proposition that the particular divorce decree of the foreign country was the product of individualized fraud or coercion or oppression or rested on proximately related public policies fundamentally offensive and inimical to those of this State must be demonstrated."
( Gotlib, 83 NY2d at 699-700; see also In re Caputo, 266 AD2d 538, 539 [2 Dept., 1999]).
Herein, defendant relies upon a facially valid decision from the Ukrainian court that dissolved his marriage to plaintiff. Accordingly, applying the above discussed principles of comity, the court recognizes this judgment ( see generally Gotlib, 83 NY2d 696; Greschler, 51 NY2d 368).
In so holding, the court notes that even assuming that plaintiff's allegations with regard to sworn statements made on the parties' immigration applications after the Ukranian Decision dissolving the marriage was 0.rendered and her contention that parties continued to live together until February 2006 are true, the allegations are legally insufficient to warrant a finding that the Ukrainian Decision is without effect. In this regard, the court in Gotlib addressed a similar issue concerning representations made after the judgment of divorce was granted and held that:
"We are also satisfied that the conduct of the parties after they immigrated to Brooklyn separately, and then undertook a living arrangement together, cannot in these circumstances be used to deprive the Soviet decree of its validity or recognition in New York. These subsequent events are not enough to create a pertinent question of fact, nor do they manifest a cognizable repudiation or dubiety about the validity of the Soviet divorce. In no event can their subsequent activity be deemed under New York law to constitute a reformalizing of the legally terminated marriage."
( Gotlib, 83 NY2d at 701; see generally Pietranico v Pietranico, 224 AD2d 673 [2 Dept., 1996] [under New York law, a divorced couple's cohabitation does not reformalize their legally terminated marriage]).
Similarly, the court need not resolve the issue of whether the parties' Ukranian divorce became final on February 17, 2007, as argued by plaintiff's attorney, or on January 1, 2004, as argued by defendant's attorney. Inasmuch as the instant action was not commenced until March 21, 2008, the parties were already divorced, without regard to which opinion the court accepts as correctly interpreting the laws of Ukraine with regard to when the parties' divorce became final. Further, inasmuch both parties agree that they were not divorced before January 1, 2004, they were still married when they filed their naturalization applications in 2003 and when they filed joint income tax returns through 2003, so that neither made any misrepresentations with regard to his or her marital status to the federal or state authorities.
Although plaintiff argues that defendant's failure to register the Ukrainian Decision with the Public Civil Status Registration Authority has the effect of rendering his subsequent marriage of July 25, 2006 void, the issue of the validity of that marriage is not now before the court.
The court also declines to allow plaintiff to collaterally attack the Ukranian Judgment of Divorce. In rejecting such a challenge, the court notes that as a general rule, under the full faith and credit clause, and thus by extension under principles of comity, a collateral attack on the ground of fraud will be permitted if the courts of the foreign State in which a judgment had been rendered would entertain such a challenge. Similarly, our courts will entertain a challenge if the laws of the foreign State demonstrate that a collateral attack would be barred there, or there is doubt as to whether it would be permitted, under circumstances where public policy warrants allowing such an attack ( see Feinberg v Feinberg, 40 NY2d 124, 128).
Herein, it is beyond dispute that the Ukrainian court would entertain an appeal of the Ukrainian Decision, since plaintiff filed an appeal, which was denied. This court finds no circumstances that would justify permitting an appeal of the Ukrainian Decision in this court, under circumstances where the court in the Ukraine has already denied an appeal. Accordingly, the Ukranian Decision dissolving the parties' parties marriage be given res judicata effect and plaintiff will not be permitted to attack it herein ( see generally Mouscardy v Mouscardy, 52 AD2d 841, 842 [2 Dept., 1976], lv denied 39 NY2d 711 [the judgment of divorce which plaintiff obtained from a Haitian court was res judicata as to the validity of his Mexican divorce]).
In so holding, the court also notes that plaintiff has not established that she was unaware of the Ukranian Decision. More specifically, plaintiff's expert does not refute the statement by defendant's experts that a judgment of divorce in Ukraine must be bilateral and that a person must appear personally in an action, offering a passport as evidence of identity. Further, plaintiff does not refute defendant's assertion that the affidavit in which she consented to the entry of a judgment and waived her appearance in court was signed on May 14, 1996, when the Ukranian Divorce Action was commenced, so that her assertion that she could not sign the affidavit on December 13, 1996, when the Decision was rendered, is unpersuasive. Accordingly, since plaintiff fails to convincingly establish how the Ukranian Decision could have been obtained without her knowledge and consent, the Ukrainian judgment of divorce is given res judicata effect for this reason as well ( see generally Ramm v Ramm, 34 AD2d 667, 669 [2 Dept., 1970], affd 28 NY2d 892 [Mexican judgment of divorce, even if originally defective, became res judicata by judicial declaration because expressly consented to by plaintiff through her attorney acting under a power of attorney]).Finally, the court notes that the holding herein is not inconsistent with the decision reached in Tsirlin (2008 NY Slip Op 50981U). Therein, the Get, the judgment of divorce relied upon in obtaining a divorce in Israel, was premised upon a divorce obtained from a rabbi in Brooklyn, which is not recognized by the courts of this state. Hence, the fact that the Get was recognized by the Israeli court in granting the parties a divorce did not alter the finding that the Get was void in its inception under our law. In contrast, the judgment relied upon herein is a valid and binding judgment obtained in the Ukraine.
The New York Judgment of Divorce and the 2004 New York Divorce Action
It is well established that:
"The doctrine of judicial estoppel, or the doctrine of inconsistent positions precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed' ( Ford Motor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436; see also Gale P. Elston, P.C. v Dubois, 18 AD3d 301, 303), and is intended to prevent abuses of the judicial system by which a party is granted relief while maintaining one position, and later, in a different action, asserting a contrary position ( D L Holdings v RCG Goldman Co., 287 AD2d 65, 71-72, lv denied 97 NY2d 611; Environmental Concern v Larchwood Constr. Corp., 101 AD2d 591, 593)." ( Dhamoon v 230 Park S. Apts. , 48 AD3d 103, 112 [1 Dept., 2007]; see generally State Farm Mut. Auto. Ins. Co. v Chandler ,35 AD3d 588 [2 Dept., 2006] [plaintiff was granted partial summary judgment declaring that it was not contractually obligated to provide insurance coverage for any claims made in connection with the subject motor vehicle accident after accepting a settlement from their own insurer pursuant to their uninsured motorists coverage, since their challenge to the validity of the disclaimer, a position inconsistent with its reliance on that disclaimer as a basis to settle their claim for uninsured motorists benefits, was barred by the doctrine of judicial estoppel]; Festinger v Edrich , 32 AD3d 412 [2 Dept., 2006] [the doctrine of judicial estoppel or estoppel against inconsistent positions was properly applied to preclude plaintiff's claim of ownership, since the claim was at odds with representations made to the United States District Court that he had no money or assets, thereby warranting the dismissal of the instant action]; Gale P. Elston, P.C. v Dubois , 18 AD3d 301, 303 [1 Dept., 2005] [defendant in a holdover proceeding was judicially estopped from arguing that she surrendered possession of her unit when, in the holdover proceedings previously commenced, she never took the position that she was no longer in possession in opposition to claims for use and occupancy, and, instead, defended her possessory claims, contending that she still occupied the unit]; Perkins v Perkins, 226 AD2d 610 [2 Dept., 1996] [the court properly applied the doctrine of judicial estoppel when it determined that the subject farm was the sole property of the former wife where the husband's claim that he contributed to its purchase and upkeep was rejected as incredible and was inconsistent with deposition testimony that he previously gave in an action commenced by a third-party creditor against him wherein he repeatedly stated that the former wife had purchased the premises with her own assets, she was the sole owner at all times and he did not contribute to the purchase or upkeep]).
Herein, in executing the Stipulation terminating the 2004 New York Divorce Action, plaintiff agreed to void the New York Judgment of Divorce because the "alleged" Ukrainian Decision was entered in 1996. Having recognized the existence of the Ukranian divorce in the 2004-New York Divorce Action, plaintiff is now estopped from arguing that she was unaware that she and defendant had been divorced in the Ukraine or that the Ukrainian Decision should be set aside because the husband fraudulently presented an affidavit to the Ukranian court in which he claimed that she consented to entry of the decision in her absence.
When this Stipulation in May 2007 was executed, it does not appear that either party was aware that the Ukranian Decision had to be registered with the Public Civil Status Registration Authority in order for their divorce to be final.
Defendant's Request for Sanctions
The court is authorized to impose financial sanctions for frivolous conduct pursuant to 22 NYCRR 130-1.1(a).
"Among the types of conduct which will be considered frivolous are those determined to be completely without merit in law' or undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another' ( 22 NYCRR 130-1.1[c], ; see Ofman v Campos , 12 AD3d 581; Stow v Stow, 262 AD2d 550. In making that determination, the court must consider the circumstances under which the conduct took place' and whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent' ( 22 NYCRR 130-1.1[c])." ( Glenn v Annunziata , 53 AD3d 565, 861 NYS2d 769, [2 Dept., 2008]). "Making claims of colorable merit can constitute frivolous conduct within the meaning of 22 NYCRR 130-1.1 if undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another'" ( Ofman, 12 AD3d at 582, quoting Stow, 262 AD2d at 551, quoting 22 NYCRR 130-1.1 [c] ).
Herein, it does not appear that the wife's conduct in commencing the instant action was designed to delay resolution of the issues or to harass or maliciously injure defendant. In fact, as argued by defendant, he believes that plaintiff was motivated by a desire to share in assets that he acquired after the parties were divorced and lived together in the United States. Accordingly, although the wife's attempt to avoid the consequences of the Ukrainian Decision were not found to persuasive, her conduct is not found to rise to the level where the imposition of sanctions would be appropriate.
In making the determination of whether a party to a matrimonial action is entitled to an award of attorneys' fees, "[a] court must consider the equities and circumstances of each particular case and respective financial positions" of the parties ( see e.g. Ludovic v Ludovic, 51 AD3d 731 [2 Dept., 2008], citing Palumbo v Palumbo , 10 AD3d 680 [2 Dept., 2004]; accord Robert v Robert , 51 AD3d 756 [2 Dept., 2008]). As is also relevant to defendant's request for an award of attorneys' fees, it must be noted that pursuant to 22 NYCRR § 202.16(k)(2) "[n]o motion shall be heard unless the moving papers include a statement of net worth."
On the facts presented herein, defendant is not entitled to an award of attorneys' fees. In the first instance, plaintiff and her attorneys allege that they are representing her on a pro bono basis, through the New York Legal Assistance Group, since she is unable to afford counsel. Under such circumstances, the court finds that the wife is not in a financial position to pay counsel fees.
In the alternative, defendant is not entitled to an award of an attorney's fees, since his failure to submit a net worth statement renders that branch of his motion defective ( see e.g. Bertone v Bertone ,15 AD3d 326 [2 Dept., 2005], citing 22 NYCRR 202.16 [k] ; Matter of Fischer-Holland v Walker , 12 AD3d 671 [2 Dept., 2004]).
For the above stated reasons, the divorce obtained by the parties in the Ukraine shall be recognized by this court pursuant to the doctrines of comity and res judicata. In the alternative, plaintiff is estopped from arguing that the Ukrainian Decision was obtained by fraud by virtue of the Stipulation that she executed in the 2004 New York Divorce Action, in which she recognized the validity of the Ukranian Decision. Accordingly, since the parties herein were already divorced when plaintiff commenced the instant action, defendant's motion to dismiss the complaint is granted. All other relief requested by defendant is denied.
The foregoing constitutes the order, decision and judgment of this court.