Opinion
Index No. 2021-268883
02-15-2022
David CHESNUT, Plaintiff, v. Jennifer A. CHESNUT, Defendant.
Copps DiPaola Silverman, PLLC, Attorneys for Plaintiff, Joseph R. Williams, Esq., of counsel, 1 Marcus Boulevard, Albany, New York 12205 Jean M. Mahserjian, Esq., P.C., Attorneys for Defendant, Katrin Falco, Esq., of counsel, 1741 Route 9, Clifton Park, New York 12065
Copps DiPaola Silverman, PLLC, Attorneys for Plaintiff, Joseph R. Williams, Esq., of counsel, 1 Marcus Boulevard, Albany, New York 12205
Jean M. Mahserjian, Esq., P.C., Attorneys for Defendant, Katrin Falco, Esq., of counsel, 1741 Route 9, Clifton Park, New York 12065
Henry F. Zwack, J.
In this post judgment of divorce proceeding, the defendant Jennifer Chestnut moves for an order vacating her default, setting aside the Judgment of Divorce and for further ancillary relief including equitable distribution (including a finding that the plaintiff dissipated marital assets and recoupment), an order that she have primary custody of the minor children of the marriage and suspension of her child support obligations. The defendant asserts a reasonable excuse for her default and a meritorious defense. The plaintiff opposes.
As an initial matter, but for the plaintiff providing in opposition copies of the involved documents and pleadings, the Court would have dismissed the defendant's application for her procedural failure to provide copies of any supporting documentation with her moving papers — particularly the judgment of divorce that she seeks to vacate.
For the reasons that follow, defendant's motion to vacate the Judgment of Divorce is denied in all respects.
Here, the Court is mindful that — including in a matrimonial action — to vacate a default judgment a moving party must demonstrate "a valid excuse for the default, and a meritorious defense and the absence of willfulness" (O'Brien v O'Brien, 148 AD2d 830, 831 [3d Dept 1989]). Albeit, as held in O'Brien (at 831) "courts have consistently embraced a liberal policy with respect to vacating default judgments in matrimonial actions" the moving party must still demonstrate both a lack of willfulness for the default and the required showing of a meritorious defense.
In order for the plaintiff to have obtained the Judgment of Divorce in the face of defendant's default, he provided this Court with proof of service, a summons with notice, his affidavit of fact as proof of his claims, and proof of the default (Woodsen v Mendon Leasing Corp. , 100 NY2d 63 [2003]). The Court can not, and in this matter did not, render the default judgment without plaintiff having established a prima facie case against the defendant ( Joosen v Gale , 129 AD2d 531 [1st Dept, 1987] ).
In this context, the Court turns first to the defendant's offered reasonable excuses for her default, including that she did not realize that she had been served with a summons or complaint; and that she believed the parties were negotiating a settlement agreement which would be incorporated into a subsequent divorce. Particularly, she tells the Court that in June of 2021 the plaintiff presented her with several one-sided agreements he prepared with the help of "We the People", all of which she rejected. When she stopped hearing from plaintiff, she decided to get an attorney, who could also explain correspondence she had received from the Child Support Collection Unit. It was not until her meeting with this attorney that she learned plaintiff had obtained a Judgment of Divorce in her absence. The defendant asserts that she does not recall ever being served with divorce papers or ever having been told by the plaintiff that he had commenced a divorce action.
In support of his opposition, the plaintiff has provided the Court with the County Clerk's file in this matrimonial action, which shows that the defendant was personally served on June 3, 2021 with the Summons with Notice (clearly stating "Action for Divorce"). On September 9, 2021 the defendant was served, by U.S. Mail, with a sworn statement of removal of barriers to remarriage, together with a copy of the proposed judgment of divorce, proposed findings of fact and conclusions of law, child support worksheet, qualified medical child support order, and notice of settlement — which clearly stated that matter would be presented to the Court for signature on September 23rd, 2021. The Court signed the Findings of Fact and Conclusions of Law and also the Judgment of Divorce on October 3, 2021, and on November 3, 2021 Notice of Entry and Judgment of Divorce were served by U.S. Mail on the defendant. Further, by letter dated October 8, 2021 the Court mailed the defendant a copy of the signed Judgment of Divorce.
On this record, the Court declines to credit or believe any of the defendant's bald and uncorroborated self serving claims that she was "never served with any divorce papers. I do not recall ever being handed a divorce pleading" or that she misunderstood the papers served. However viewed, these statements are self serving and insufficient to rebut the filed affidavits of service ( Gonzalez v City of New York, 106 AD3d 436 [1st Dept 2013] ). Unequivocally, the defendant was served and mailed multiple documents in this divorce action, spanning over five months — all clearly referencing the divorce — in sum sufficient for the Court to find her default willful and unreasonable.
In view of the Court's finding that defendant has not demonstrated a reasonable excuse for her failure to appear and oppose the relief requested, the Court need not reach whether defendant has established a meritorious defense to the action ( Rosenweig v Gubner , 194 AD3d 1086 [2d Dept 2021] ). This said, the Court has considered her various claims of a meritorious defense, including the allegation that the plaintiff has alienated the children against her, going so far as to write notes to her which he attributes to the children, and that she should be awarded primary physical because his interference is not in the children's best interest. Further, the Court noted her assertions that the plaintiff has inflated her earnings and the calculation for child support is therefore incorrect (without stating her actual earnings ...). As well, her statement that the plaintiff's assertion that there are no marital assists was misleading, as the parties primary residence was her family home and when she moved out, plaintiff allowed it to be lost, clearly leaving a claim by her for the wasteful dissipation of marital assets and recoupment. Notably, on the issues now attempted to be raised, the defendant was required to offer more than unsupported and self serving claims. Particularly missing on her application, with respect to the ancillary issues of child support and equitable distribution, was the required Statement of Net Worth ( Uniform Rule 202.16 ; Trim v Trim, 21 AD3d 1203, 1295 [3d Dept 2005] ).
To be clear, on the instant application the defendant was required to present facts showing significant marital assets yet to be distributed, or other material misrepresentations by the plaintiff on the default application. The defendant's supporting affidavit — in sum primarily seeking a modification child support and a change in custody — is, in the Court's view, short on facts and insufficient (despite the "liberal" view in treating a default in a matrimonial action) for the Court to vacate the judgment of divorce.
All said, the Court declines to credit or give any weight to the defendant's self serving claims concerning her default, finds her default to be willful and unreasonable, and also declines to credit or give any weight to her uncorroborated self serving claims of a meritorious defense.
The record amply establishes that the defendant was served on multiple occasions with the pleadings in the divorce action, notices of settlement (with copies of the proposed judgment of divorce and proposed findings of fact and conclusions of law), notice of entry of the judgment of divorce, and also a copy of the judgment of divorce provided by the Court before the entry and filing of the judgment of divorce — in sum sufficient for the Court to conclude that her default was willful and unreasonable.
Lastly, while the Court declines to vacate the Judgment of Divorce, this decision and order does not preclude an application, in either Supreme Court or Family Court, to modify the child custody and/or the child support provisions of the Judgment of Divorce. The terms of the Judgment of Divorce also includes the right of each party to seek modification of the child support award if his/her income has changed by more than 15%.
Accordingly, it is
ORDERED , defendant's motion is denied in all respects.
This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorneys for plaintiff. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Papers Considered:
1. Notice of Motion dated January 13, 2022; Affidavit in Support of Jennifer Chestnut, sworn to on December 22, 2021; Affirmation of Katrin E. Falco, Esq., dated December 22, 2021; Exhibits "A" and "B;"
2. Affirmation in Opposition of Joseph R. Williams, Esq., dated January 26, 2022; Affidavit of David Chestnut, sworn to on January 26, 2022, with Exhibits "A" through "H;"
3. Reply affirmation of Katrin E. Falco, Esq., dated January 31, 2022.