Opinion
XXXXX.
Decided January 18, 2006.
This is an action for divorce on the ground of abandonment. Plaintiff's complaint also asserts a plenary cause of action seeking judgment setting aside a separation agreement dated September 19, 1972 and a judgment of divorce dated October 24, 1984.
The defendant filed a request for judicial intervention on October 24, 2005.
The defendant moved by notice of motion returnable on November 7, 2005, for a protective order pursuant to CPLR 3103 vacating all demands served by the plaintiff for financial disclosure. He also sought an order pursuant to CPLR 3211(a) dismissing the complaint.
The motion was adjourned on consent to November 22, 2005. The parties and counsel appeared on that date before the Hon. Joseph Spinola, but a preliminary conference was not conducted. The defendant's motion was submitted on November 22, 2005, but thereafter was adjourned by Justice Spinola to January 20, 2006. The action was transferred to the undersigned Justice on January 3, 2006. The undersigned Justice advanced the motion to January 17, 2006.
The parties were married on August 3, 1940. The plaintiff is 85 and the defendant is 86 years old. The parties had a son, now deceased, and they have a daughter, R, who is 64 years old.
The defendant moved out of the marital residence several years prior to 1972. Sometime prior to 1972, he had a child with his secretary, A. Since in or about 1973, the defendant has resided with F, another former secretary. He and F have a 16 year old son.
On September 9, 1972, the parties executed and acknowledged a document in the office of an attorney, Jerrad Siegel. Mr. Siegel notarized the document. The terms of said document recite, in part, that the parties have been living apart for some time, and that they wish to confirm their separation and settle their respective rights growing out of the marital relationship. The document sets forth a waiver of each party's interest in the other's estate and contains a general release of all claims and causes of action other than an action for divorce. The defendant was required to transfer all his rights in the marital residence in Elmont to the plaintiff and to pay her support of $100.00 a week.
During the ensuing 33 years, the defendant regularly visited the plaintiff at the former marital home. According to the plaintiff, said visits occurred at least once weekly and included overnight visits and meals together. Both parties agree that they attended many family functions together throughout this period of time.
Between September 19, 1972 and the date of the commencement of the present action, the defendant did not pay the plaintiff $100.00 a week. He did, however, pay the property taxes on the marital residence, averaging $6000.00 to $7000.00 a year, and made direct payments to her from time to time. Such direct payments totaled $10,000.00 in 2000; $5000.00 in 2001; $7000.00 in 2002; $11,000.00 in 2003; and $5500.00 in 2004.
The defendant has presented an affidavit of service that indicates that on August 23, 1984, he commenced an action for a conversion divorce by personal delivery to the plaintiff of a summons with notice and verified complaint at the Elmont residence, effectuated by one Olya Smyszniuk. He also presented an affidavit by Ms. Smyszniuk stating that on October 16, 1984, she personally delivered proposed findings and judgment to the plaintiff at the former marital residence. The defendant has not provided proof that a copy of the signed judgment of divorce, dated October 24, 1984, with notice of entry, was ever served on the plaintiff, nor has he alleged same.
On July 9, 1985, the defendant married F in London. The plaintiff concedes that in or about 1989, at the time of his son's birth, the defendant told her he had "gone through a marriage ceremony" with F in London.
On June 21, 2005, after discussing her financial circumstances with her granddaughter, R's daughter, D, the plaintiff commenced the instant action wherein she seeks judgment 1) setting aside the agreement dated September 19, 1972; 2) vacating the judgment of divorce dated October 24, 1984; and 3) granting her a divorce on the ground of abandonment.
Shortly after a summons with notice was served on the defendant in the above captioned action, he provided his granddaughter, D, with a copy of the October 24, 1984 judgment of divorce and asked her to give same to the plaintiff.
The plaintiff contends that the defendant has perpetrated a fraud on her for the past 33 years. In support of this contention she states as follows: she signed a document in the defendant's attorney's office on September 19, 1972, without an opportunity to read same, upon the defendant's representation that the parties were signing the document in order to transfer the marital residence to her to protect the asset from his creditors, in view of the then pending bankruptcy proceedings involving his business; she was never given a copy of said document; the defendant paid certain of her expenses and interacted with her and their family members, during the 33 years preceding the commencement of this action, in order to continue to deceive her into believing the parties were still husband and wife; the defendant only admitted in 1989 to going through a marriage ceremony with F in London in 1985; he did not tell the plaintiff that he was divorced from her, nor did he contradict plaintiff's statement that the act of going through a ceremony in London would render him a bigamist; and the defendant further advised the plaintiff in 1989 that he went through the ceremony in London so that there would not be two marriages on record in the United States. The plaintiff unequivocally denies that anyone ever served a summons with notice, verified complaint or proposed findings and judgment upon her. She states that in executing the affidavits of service, Ms. Smyszniuk either committed perjury or said process server was somehow tricked into signing same.
The defendant denies perpetrating any fraud on the plaintiff. He states that her claim that she has considered herself his wife for the past 33 years is "at great variance with the parties' actual lives and is . . . more like something created solely for the purpose of this litigation." He contends that the plaintiff's claims are incredible as a matter of law; that her plenary cause of action is barred by the statute of limitations and should be dismissed on the additional ground of ratification; and her cause of action for divorce should be dismissed on the ground of res judicata in that the parties were divorced in 1984. In support of his claims, the defendant has provided an affidavit from the parties' daughter, R, the mother of D. R's affidavit states that in or about 1988, her mother told her that her father had remarried.
The motion for a protective order is granted on consent. The plaintiff's attorney concedes that the plaintiff is not entitled to discovery of the defendant's present financial circumstances unless and until such time as the September 19, 1972 separation agreement is set aside (see, Michaels v. Michaels, 234 AD2d 526).
Based upon all of the foregoing, the motion for an order dismissing the complaint pursuant to CPLR 3211(a) is decided as follows:
Pursuant to CPLR 213(8) and 203(g) an action sounding in actual fraud must be commenced within six years of the commission of the fraud, or within two years after the fraud was or should have been discovered through the exercise of reasonable diligence. Further, the law is well settled that "(c)oncealment with the intent to defraud of facts which one is duty-bound in honesty to disclose is of the same legal effect and significance as affirmative misrepresentations of fact" ( Abbate v. Abbate, 82 AD2d 368; see also, Nasaba Corp. v. Harfred Realty Corp., 287 NY 290, 294-296; Emord v. Emord, 193 AD2d 775). A duty to disclose is triggered when a fiduciary has reason to believe that information is material and germane and that the failure to disclose it has the same net effect as an affirmative misrepresentation ( Botti v. Russell, 180 AD2d 947; see, 60 NY Jur2d, Fraud and Deceit, 93-96 at 568-577).
Here, the plaintiff can state a meritorious cause of action to set aside the separation agreement if, pursuant to the CPLR 203(g) and 213(8) two-year from discovery rule, she can viably allege that the fraud in issue was actively concealed by the defendant and could not have been discovered by her, through the exercise of reasonable diligence, within the two years prior to the commencement of the action (see, Dubovsky v. Dubovsky, 188 Misc 2d 127).
The time that a plaintiff could, through the exercise of reasonable diligence, have discovered an alleged fraud has been defined by the Appellate Division, Second Department as the time from which it ". . . conclusively appears that the plaintiff has knowledge of facts which would have caused him or her to inquire and discover the alleged fraud" ( Baratta v. ABF Real Estate Co., 215 AD2d 518, quoting Rattner v. York, supra, at 721). "The two-year period does not commence from the date that plaintiff has positive knowledge of the fraud, but from the date plaintiff becomes aware of enough operative facts so that with reasonable diligence he or she could have discovered the fraud" ( Stride Rite Children's Group, Inc, v. Siegel, 269 AD2d 875, quoting Watts v. Exxon Corp., 168 AD2d 74, 76).
In the case at bar, the defendant contends that this Court should hold, as a matter of law, that the statute of limitations began to run, at the very latest, in 1989, when the plaintiff admits she was apprised that the defendant and F participated in a wedding ceremony in London in 1985. In such case, the statute would have run two years later, in 1991, fourteen years prior to the commencement of the action. The plaintiff responds, however, that the information that the defendant participated in a marriage ceremony in London in 1985 merely led her to conclude that he was a bigamist and that any such ceremony did not create a valid marriage.
As a general rule, in the absence of actual fraud perpetrated by the defendant, the plaintiff's admitted failure to read the September 19, 1972 agreement, would not constitute grounds to set same aside, or excuse her failure to discover that she had in fact executed a separation agreement on that date (see, In re Neidich, 290 AD2d 557; In re Estate of Schuellain 269 AD2d 864; In re Estate of Garbade, 221 AD2d 844; Pommer v. Trustco Bank, 183 AD2d 976). Here, however, the plaintiff alleges and the defendant denies that he perpetrated an actual fraud for 33 years.
The Court finds that there are questions of fact, as to when the plaintiff should have reasonably discovered the defendant's claimed fraud, which preclude dismissal of the plaintiff's plenary action as a matter of law on the ground that same is barred by the statute of limitations pursuant to CPLR 3211(a). However, the Court further finds that there may be a plethora of documents that may determine the issue conclusively. For example, between 1984 and the present, did the plaintiff file an income tax return stating her marital status as divorced or married filing separate? Did she collect social security, and if so, was her benefit based on her own earnings or did she collect same as the defendant's divorced former spouse? Was plaintiff named as defendant's spouse on any policy of health insurance between 1984 and the present time? Did the defendant file tax returns jointly with F after 1985? Did he and plaintiff file joint returns? Did the defendant deduct any maintenance payments to plaintiff on any tax return and or did he deduct the real property taxes he paid on the former marital residence over the past 33 years? Does he own any real property with F as tenants by the entirety?
In the interest of judicial economy and in the discharge of its obligation to act as a court of equity in resolving marital disputes, the Court hereby notifies the parties pursuant to CPLR 321[c] that it intends to consider the instant motion as an application for summary judgment on the issue of whether or not the plaintiff knew or should have known, more than two years prior to the commencement of this action, that the document she signed on September 19, 1972 was a separation agreement. The defendant may serve additional papers in support of the instant application on or before April 17, 2006. The plaintiff may serve additional papers in response thereto on or before May 8, 2006. The motion for summary judgment dismissing the plenary action is adjourned to May 8, 2006 to afford the parties the opportunity to obtain income tax and other relevant records that might well be dispositive. Information on tax returns not relevant to the issue before the Court may be redacted.
To the extent that the defendant seeks dismissal of plaintiff's plenary action on the ground of ratification, the motion is denied. The defendant concedes he never paid plaintiff $100.00 a week as required by the September 19, 1972 agreement. The fact that he gave plaintiff sums of money and paid bills on her behalf over the past 33 years does not indicate as a matter of law that plaintiff accepted the benefits of said agreement, as her acceptance of financial benefits from the defendant, greater than those required by said agreement, could clearly have resulted from her perception that, as the defendant's spouse, she was entitled to receive support.
With regard to plaintiff claim that she is entitled to vacatur of the judgment of divorce on the ground that the Court lacked personal jurisdiction to grant such relief, the Court must determine whether plaintiff was properly served with a summons and complaint in the divorce action on August 23, 1984. In the event she was not properly served, said judgment is null and void regardless of the validity of the September 19, 1972 separation agreement (see, Mayers v. Cadman Towers, 89 AD2d 844).
Generally, a properly executed affidavit of service constitutes a rebuttable presumption that service of process was effectuated upon a defendant (see, De La Barrera v. Handler, 290 AD2d 476). A conclusory denial of receipt of service of process, not accompanied by further probative facts, is insufficient to rebut said presumption (see, American Savings Loan Association v. Twin Eagles Bruce, Inc., 208 AD2d 446).
Here, the plaintiff has provided little in the way of probative facts beyond an unequivocal denial of service. She has not, for example, advised the Court that she was out of town, at work, or otherwise away from the marital residence on the date and time of the service stated in the affidavit herein. Nevertheless, in view of the allegations of long term fraud and the fact that the affidavit of service herein, does not set forth a description of the person served and is not accompanied by the photograph used to identify said person, the Court finds that a traverse hearing is required to determine whether the Court had jurisdiction to grant the judgment of divorce dated August 24, 1984. Even if the Court hereafter upholds the validity of the separation agreement, the judgment of divorce will be vacated if same was granted without jurisdiction over the plaintiff herein, and pursuant to the instant divorce action, the plaintiff will be entitled to assert, pursuant to DRL 236B(3), that the maintenance provisions set forth in the separation agreement would be unconscionable as of the time of entry of the judgment of divorce, and accordingly should be modified by the Court prior to the entry of such judgment.
A traverse hearing will be scheduled subsequent to the determination of the instant motion for summary judgment.
To the extent that the defendant's instant motion seeks an order dismissing plaintiff's cause of action for divorce on the ground of res judicata, said application is referred to the traverse hearing.
This constitutes the decision and order of the Court.