Opinion
No. 29612/07.
2013-01-16
Mikhail KUZNETSOV, Plaintiff, v. Anna KUZNETSOVA, Defendant.
Bukh & Associates, Brooklyn, Attorney for the plaintiff, Mikhail Kuznetsov. Barry Elisofon, Esq., Brooklyn, Attorney for the defendant, Anna Kuznetsova.
Bukh & Associates, Brooklyn, Attorney for the plaintiff, Mikhail Kuznetsov. Barry Elisofon, Esq., Brooklyn, Attorney for the defendant, Anna Kuznetsova.
DELORES J. THOMAS, J.
Upon the foregoing papers, defendant Anna Kuznetsova moves for an order (Motion Sequence No. 13):(1) declaring that the parties' Separation Agreement, dated December 16, 2002, is valid and/or binding on the parties herein; and (2) declaring that the parties' Russian Judgment of Divorce, dated January 29, 2003, is valid. Plaintiff Mikhail Kuznetsov cross-moves for an order (Motion Sequence No. 14):(1) declaring that the Separation Agreement is invalid and setting it aside; and (2) declaring that the Russian Judgment of Divorce is invalid and setting it aside.
Factual and Procedural Background
The parties were married on September 21, 1991 in Moscow, Russia. One child, a son, was born as a result of the marriage, on October 1, 1992. The parties moved from Russia to the United States in approximately 1997.
In November or December 2002, defendant left the marital residence located at 2459 East 23rd Street, in Brooklyn, New York. Defendant submits a copy of the Separation Agreement allegedly entered into between plaintiff and defendant on December 16, 2002. The document, which is written in English, states that the parties reside in Brooklyn, New York at the time of execution. The Separation Agreement provides that:
“WHEREAS, certain unhappy and irreconcilable differences have arisen between the parties and, as a result, they have separated and [are] now living separate and apart from each other;
WHEREAS, it is the intention of the parties to continue to live separate and apart, and it is their desire to enter into an agreement under which all their respective rights, remedies, privileges and obligations to each other, arising out of the marriage relation or otherwise, shall be fully prescribed and bounded;
WHEREAS, each of the parties is willing that the other shall have full power and authority to dispose of his or her real or personal property by will, without the consent of herein, is willing to waive all right and interest in the property and estate of the other party; and
WHEREAS, each of the parties has been advised that any property he or she may have owned at the time of the marriage would constitute separate property', as that term is defined by Section 236(B) of the Domestic Relations Law of the State of New York (the “DRL”);
NOW, THEREFORE, in consideration of the promises and the mutual promises and covenants contained herein, the parties do mutually covenant and agree as follows:
ARTICLE 1
SEPARATION
The parties shall continue to live separate and apart ...
ARTICLE 2
CUSTODY, MEDICAL SERVICES, CHILD SUPPORT
A. Wife shall have custody of the minor child of the Marriage.
B. Wife shall be responsible for providing medical services for the parties' minor child from period following the date of this Agreement.
C. Husband shall pay to the Wife, as and for the supportive [sic] minor child, the sum of Zero ($0.00) Dollars per month.
ARTICLE 3
EQUITABLE DISTRIBUTION OF MARITAL PROPERTY
A. The parties, by execution of this Agreement, have provided for the equitable distribution of all property belonging to them, whether such property shall have qualified as separate property' or as marital property' within the meaning of the statute (DRL Section 236, Part B) commonly know[n] as the Equitable Distribution Law ...
B. The parties further agree that the distribution of property, as set forth in this Agreement, constitutes distribution which shall be binding on both parties, now or in the future, and each party waives any claim of right or title to any property, either real or personal, which has been allocated to the other party pursuant to the terms of this Agreement.
ARTICLE 4
MATRIMONIAL DECREES
This Agreement shall not be invalidated or otherwise affected by a reconciliation or a resumption of marital relations, unless said reconciliation or resumption is documented by a statement executed and acknowledged by the parties, stating that they have invalidated or otherwise affected this Agreement. The obligations and covenants of this Agreement shall survive any decree or judgment of divorce or separation and shall not merge therein, and this Agreement shall be enforced independently of such decree or judgment.”
The Separation Agreement contains the signatures of both parties, as well as the acknowledgment of each party before New York notary Dikovskaya Eleonora, on December 16, 2002. The parties both claim to have lived separate and apart, in Brooklyn, New York, since November or December 2002.
In January 2003, plaintiff commenced an action for divorce in the Timiryazevskiy District Court in Moscow, Russia. A Russian Judgment of Divorce was signed by a judge in that action on January 29, 2003.
Plaintiff commenced the instant action by Amended Verified Complaint filed on August 23, 2007, seeking a divorce pursuant to Domestic Relations Law Section 170(2), in addition to equitable distribution of the parties' assets. Defendant filed a Verified Answer on October 15, 2007, setting forth affirmative defenses and requesting ancillary relief, including custody of the parties' son, child support, health insurance, counsel fees and equitable distribution of marital assets.
The Parties' Contentions
Defendant's Motion
Defendant alleges that after the family moved from Russia to the United States in 1997, plaintiff returned to Russia frequently for business purposes. Defendant contends that, while in Russia, plaintiff engaged in intimate relations with at least two women. According to defendant, in December 2002, plaintiff requested that she move out of the marital residence and insisted that she sign the Separation Agreement he procured. ( a) The Separation Agreement
Defendant alleges that both parties signed and acknowledged the Separation Agreement before a notary. Defendant claims that she was not represented by counsel when the Separation Agreement was executed. According to defendant, she believed the Separation Agreement was valid and binding on the parties. Defendant contends that she ratified the Separation Agreement when she permanently moved out of the marital residence in December 2002.
With respect to the issue of equitable distribution, defendant asserts that the Separation Agreement complies with Domestic Relations Law Section 236(B), because it contains a notice that the parties had already divided up their marital property.
Defendant contends that she gave a copy of the Separation Agreement to her attorney in early 2008. According to defendant, during motion practice going on at that time, her attorney attached a copy of the Separation Agreement (as Exhibit 10) to defendant's Reply dated May 12, 2008. Defendant alleges that during the pendency of this action, plaintiff has never moved to set aside the Separation Agreement or requested that it be declared invalid.
Defendant contests plaintiff's claims that he misunderstood the content of the Separation Agreement because it was drafted in English. Defendant asserts that even though plaintiff has utilized Russian interpreters during the instant proceeding, in reality he speaks “very passable English.” According to defendant, plaintiff speaks to his business associates in English while working at his home office in the marital residence.
Defendant further asserts that, while attending bench conferences with the undersigned and/or conferences with court attorneys, plaintiff conversed in English with his non-Russian-speaking attorneys. ( b) The Russian Judgment of Divorce
Defendant states that she frequently witnessed plaintiff's business communications when she was at the marital residence visiting her son. With respect to her son's presence at the marital residence, defendant asserts that he spent a significant amount of time there because her own apartment was smaller, and because plaintiff's elderly mother needed assistance while plaintiff was away in Russia.
Defendant alleges that plaintiff gave her a copy of the Russian Judgment of Divorce in 2003. However, defendant states that she was unable to find the document when she was recently looking for it. Defendant further states that “it was only recently that I recollected about the Russian divorce and told my present attorney about it.” According to defendant, in January 2012, she went to Russia to procure various documents, including a copy of the Russian Certificate of Divorce.
Defendant submits a certified copy of the Russian Certificate of Divorce and a certified English translation of same. The English translation states that the parties' marriage was dissolved on February 10, 2003, under a “Judgment of the Timiryazevsky District Court dated January 29, 2003.” The translation also states that a “record No 507 was made in the Divorce Register on the 18th day of March 2003.” The “Place of state registration” is listed as “Dmitrovsky Registry Office of Moscow.” The “Date of Issue” of the Certificate of Divorce is January 18, 2011. The English translation states that the Certificate bears the official seal of the “Government of Moscow, Moscow Registry Directorate, Main State Registration No 1037739512689, Dimitrovsky Registry Office.” Finally, the translation states that the document has an official seal and signature of notary public “Krasnova M.Y.”
Defendant states that, several years ago, her mother died and she inherited an apartment in Moscow, Russia. Defendant alleges that she needed a copy of the Russian Judgment of Divorce in relation to her inheritance. According to defendant, it took her several months to procure the Russian Certificate of Divorce and the English translation of same. Defendant contends that she did not pick up the documents until January 2012.
According to defendant, after she was served with the Russian Judgment of Divorce, neither she nor plaintiff sought to set it aside in Russia or in the United States. Defendant alleges that both parties accepted that the Judgment of Divorce was valid. Defendant insists that plaintiff commenced the instant action for divorce unnecessarily.
According to defendant, any claims by plaintiff for equitable distribution of marital property subsequent to January 2003 are legally unenforceable, because any property acquired after that date was not acquired during the marriage. Based upon the terms of the Separation Agreement, defendant contends that all equitable distribution that existed during the marriage was resolved and/or waived in 2002 when the Separation Agreement was executed.
Finally, defendant notes that in paragraph 9 of the Complaint, plaintiff alleges that no decree of divorce was ever granted to him in any other State or foreign country. Defendant notes that, in her Answer, she did not admit as true the information contained in paragraph 9 of the complaint. To the contrary, defendant alleges that she denied sufficient knowledge or information to form a belief as to paragraph 9 of plaintiff's Amended Complaint.
Plaintiff's Cross–Motion and Opposition to Defendant's Motion
In support of his cross-motion and in opposition to defendant's motion, plaintiff first alleges that, from 1999 until 2002, he traveled to Russia for business purposes approximately three to four times per year. Plaintiff alleges that his mother, Ella Kuznetsova, took care of the family while he was in Russia because defendant refused to perform any household duties or care for the parties' son. Plaintiff denies that either defendant or his son ever helped take care of his elderly mother at the marital residence. Plaintiff submits affidavits from his mother and her caregivers/home attendants, Nazira Tursunova and Rozakiya Rakhlis, stating that defendant did not help care for plaintiff's mother. According to plaintiff, defendant left the marital residence on November 29, 2002, abandoning both him and the child. ( a) The Separation Agreement
Plaintiff argues that the Separation Agreement should be declared void ab initio under New York law, because it was procured as the result of fraud, duress or incapacity. First, plaintiff alleges that, on or about December 10, 2002, defendant came to the marital residence with the proposed Separation Agreement and demanded that he sign it. According to plaintiff, defendant procured the Separation Agreement and then told him that it was drafted by “some girl from a Russian Legal Agency located on Brighton Beach, Brooklyn, New York.” Plaintiff further alleges that when he told defendant he wanted to consult with an attorney regarding the Separation Agreement, defendant threatened to call the police and report that he had hit her and kicked her out of the house. Plaintiff asserts that he signed the agreement “without thoughtfully reading it,” because he feared being arrested as a result of defendant's threats. According to plaintiff, at the time he signed the agreement, he was still hopeful for a reconciliation with plaintiff.
Second, plaintiff contends that he is not fluent in English and was, therefore, unable to fully understand the terms of the Separation Agreement until it was later translated into Russian and explained to him by his attorney. Plaintiff avers that he subsequently informed his attorney that the agreement did not express his intent regarding living separate and apart, the distribution of marital property, custody of the child, and child support.
Third, plaintiff contends that he never signed the Separation Agreement before a notary as required by Domestic Relations Law (DRL) Section 236(B)(3). Therefore, plaintiff argues that the written certificate of acknowledgment contained in the Separation Agreement is invalid, rendering the entire Separation Agreement invalid.
Additionally, plaintiff notes that in defendant's Answer, she requested, among other things, equitable distribution of all marital assets, child support, and health insurance. According to plaintiff, these requests are evidence that defendant never believed the Separation Agreement was valid. Plaintiff also denies that defendant ever ratified the Separation Agreement. To the contrary, plaintiff asserts that defendant acted as if the Separation Agreement never existed. Plaintiff alleges that when he signed the Separation Agreement, defendant told him that she did not intend to file it with the court, nor did she intend to commence a divorce proceeding. Plaintiff claims that defendant has never financially supported the parties' son, nor has their son resided with defendant since the signing of the Separation Agreement. Plaintiff also notes that defendant did not acknowledge the existence of the Separation Agreement in her Answer.
Lastly, plaintiff points out that defendant did not file the Separation Agreement with the court to convert it into a divorce as required by DRL Section 170(6), and instead has been fighting the instant divorce action for several years. Plaintiff further asserts that defendant improperly waited until the eve of trial to disclose the existence of the Separation Agreement. According to plaintiff, defendant's delay is unfair and prejudicial to him, making the principles of estoppel, laches and unclean hands applicable herein. ( b) The Russian Judgment of Divorce
Plaintiff states that he traveled to Russia for business purposes in December 2002 and stayed through January 2003. Plaintiff asserts that he decided to file for divorce in Russia during that time because defendant was openly residing with her boyfriend/fiancé Valery Ivelevitch. Plaintiff alleges that he went into the Timiryazevskiy District Court in Russia and asked a court clerk employed there if he could file for divorce. According to plaintiff, he told the clerk that both he and defendant were permanent residents of the United States. Plaintiff contends that the clerk told him that the parties' residence in the United States was not a problem. Plaintiff alleges that he was not familiar with Russian laws, nor did he seek advice from a Russian attorney regarding the commencement of a divorce action in Russia. Plaintiff states that the clerk advised him to sign a Power of Attorney so that he could be represented in Russian court. According to plaintiff, on January 20, 2003, he signed a Power of Attorney appointing his friend, Mikhail Katsovskiy, to be his attorney-in-fact in the Russian divorce action. Plaintiff states that he was not present when the judge signed the Russian Judgment of Divorce on January 29, 2003.
Plaintiff alleges that in February 2003, he told defendant that he had been granted a divorce in Moscow, Russia, and she responded that she would “never recognize this divorce.” Plaintiff alleges that he obtained a Russian Certificate of Divorce while he was in Russia on March 18, 2003,
at which time he noticed that defendant's date of birth and nationality were missing on the document. Plaintiff contends that, in light of the missing information, he retained a Russian attorney to advise him as to whether the divorce was valid. Plaintiff alleges that the Russian attorney obtained a copy of the divorce file from the Timiryazevskiy District Court and, upon reviewing the file, reached the conclusion that the “ex-parte divorce” was obtained in violation of the Civil Procedural Code of the Russian Federation (the Civil Procedural Code) and the Family Code of the Russian Federation (the Family Code). According to plaintiff, the attorney advised him that the Russian divorce was invalid, because defendant resided permanently in the United States and the court never obtained jurisdiction over the divorce.
Plaintiff submits a copy of the Russian Certificate of Divorce, which includes a copy of an accompanying apostile and official seal. Plaintiff further submits a copy of an English translation of the Russian Certificate of Divorce, which states that it was translated by “Natalia Aleksandrovna Nikolaeva.” The translation of the apostile states that the copy of the certificate was notarized by “Tatiana Alekseevna Pelevina.” The copy is certified by “Ilyina L.G.,” “Deputy Head of Main Department of Ministry of Justice of Russia for the City of Moscow.” The English translation submitted by plaintiff is essentially identical to the translation submitted by defendant.
Plaintiff avers that from 2003 until 2007, he repeatedly asked defendant to commence a divorce proceeding in the Supreme Court, Kings County, but she refused to do so, based upon her claims that it was convenient for her to be legally married to plaintiff while she was living with her fiancé. According to plaintiff, defendant told him that if he filed for divorce, she would litigate the matter as long as possible, “because she wants a part of my business and property that I never owned and I will pay her attorney's legal fee because she is a student.”
Contrary to defendant's claims, plaintiff contends that he never believed the Russian Judgment of Divorce was valid. Plaintiff notes that when defendant's attorney raised the issue of the Russian divorce at plaintiff's examination before trial on June 19, 2009, he tried to explain at that time why he filed the instant action in 2007. When the question of the validity of the Russian divorce came to this court's attention in February 2012, plaintiff states that he retained Karina Krasnova (Krasnova), an attorney licensed to practice law in the Russian Federation and in the State of New York.
Plaintiff submits an affidavit from Krasnova, dated February 20, 2012,
Plaintiff submits a copy of a letter from the Clerk of the Court, Appellate Division, Second Department, stating that Krasnova was duly licensed on December 16, 2009 as a Legal Consultant from Russia, and that she is in good standing.
wherein she opines that the “ex-parte” Russian Judgment of Divorce is invalid.
The court notes that Krasnova does not include any verbatim copies of the Russian Codes she references in her affidavit, nor does she include certified English translations of same. Krasnova states that in reaching her opinion, she reviewed a copy of the divorce file from the Russian action of divorce (File No. 2–893/03). Krasnova attaches a copy of the Russian divorce file to her affidavit. There are 16 documents in the file which all contain the typewritten date “07/11/2007,” however, the file is not identified as an official certified copy of the original file. The court also notes that several of the Russian copies of documents are blurry and difficult to compare against the English translations of same. The English translations are accompanied by a notarized Affidavit of Accuracy, which states that “Nina Zakharevyeh” translated the Russian file into English.
Plaintiff argues that the Russian Judgment of Divorce should be declared invalid under New York law. Plaintiff notes that neither party appeared personally in the Russian divorce proceeding. Plaintiff further notes that, at the time he commenced the Russian divorce action, he was a New York resident not domiciled in Russia. Plaintiff also alleges that he never notified defendant that he was traveling to Russia to obtain a divorce. Plaintiff insists that defendant was not served with process in Russia or New York. Therefore, plaintiff contends that the Russian court never obtained in personam jurisdiction over either spouse.
Moreover, plaintiff argues that the Russian Judgment of Divorce is invalid under Russian law. In her affidavit, Krasnova states that Article 28 of the Civil Procedural Code requires a divorce complaint to be filed into the court determined by the defendant's place of residence. According to Krasnova, the Russian divorce documents list defendant's place of residence at the time the action was filed in December 2002 as “Angarskaya Street 45, building 6, apartment 89, Moscow, 127412.”
Krasnova opines that there is no evidence in the Russian divorce file confirming that defendant actually resided at the above Russian address. Krasnova further notes that in the instant action, defendant states that her permanent address in December 2002 was “2686 Ocean Avenue, apt. C–2 in Brooklyn, New York.” According to Krasnova, the Russian court did not establish defendant's proper place of residence at the time the divorce action was filed. Thus, Krasnova avers that the Russian court did not obtain jurisdiction over the divorce proceedings or over defendant.
The English translation of the Russian “Divorce Dissolution Complaint” submitted with Krasnova's affidavit states that: (1) plaintiff resides in Brooklyn, New York; (2) plaintiff's representative resides in Moscow, Russia; and (3) defendant resides in Moscow, Russia at the above-stated address.
Furthermore, Krasnova states that Article 131 of the Civil Procedure Code requires a Russian divorce complaint to contain the signature of the plaintiff or his representative on the complaint. Plaintiff and Krasnova both assert that plaintiff's representative did not have legal capacity to sign and file the divorce complaint and other papers on behalf of plaintiff on December 23, 2002, because the Power of Attorney was executed on January 20, 2003.
Consequently, plaintiff argues that the divorce complaint was signed and filed by an unauthorized person, in violation of Article 131 of the Civil Procedure Code. Krasnova opines that this violation of procedural requirements created an insufficient action for a divorce and an unlawful outcome in the divorce action.
The English translation of the Russian divorce complaint lists the date as December 23, 2002, and states that the document was signed by plaintiff's representative. The Power of Attorney included in the Russian divorce file is dated January 20, 2003, and it states that plaintiff appoints his Katsovskiy to be his representative and conduct a civil suit on his behalf with all rights afforded by law. The Power of Attorney is signed by both plaintiff and his representative and it is notarized as well.
Additionally, citing Krasnova's opinion, plaintiff alleges that pursuant to Article 113, Part 1, of the Civil Procedure Code, parties in Russian civil actions “must be served by the court notice” and “such notice should be served by means of communication and delivery.” Plaintiff alleges that the service of the court notice must be: (1) performed by personal delivery to the defendant; and (2) accompanied by the proper confirmation of service and acceptance. Here, plaintiff contends that the Russian court performed service on the defendant by sending a telegram to defendant's alleged place of residence at the aforementioned Moscow address. Plaintiff avers that, according to Russian procedural requirements, defendant's acceptance of the telegram should have been confirmed by her signature. According to plaintiff, the copy of the telegram in the divorce file does not contain a stamp of acceptance nor the signature of defendant confirming that she accepted service.
In her affidavit, Krasnova opines that, because of the absence of confirming evidence in the file, she is “strongly concerned” that defendant was not served in the Russian action. Plaintiff contends that, because service of process was not performed, the Russian court did not obtain proper jurisdiction over the divorce proceedings or over defendant. Krasnova cites Article 135 of the Civil Procedural Code to support her contention that the Russian court was obligated to dismiss plaintiff's action for divorce. According to Krasnova, the ex-parte Russian Judgment of Divorce was rendered in violation of Chapter 22 of the Civil Procedural Code.
The English translation of the divorce file submitted by plaintiff contains the decision of the Russian judge (Federal Judge “Matveeva E.V.”), dated January 23, 2003. Said decision states that the Russian judge examined the complaint and found that it was submitted with a violation, namely, that plaintiff failed to pay the state fee required by Article 126 of the Civil Procedure Code. The decision states that the action is stayed “without movement,” and that plaintiff (or his representative) has until January 30, 2003 to pay the fee in order to cure the violation, to prevent the complaint from being returned.
The file also contains a telegram to defendant, signed by the aforementioned Russian judge, notifying her of the January 29, 2003 court date in the divorce suit. The telegram states that the return receipt must be sent to the court.
Further, the file contains a “Court Hearing Protocol” dated January 29, 203, which states that plaintiff did not appear at the hearing, but that his representative was present. The document states that the parties agreed to an ex-parte hearing, and that plaintiff's representative supports plaintiff's complaint and the dissolution of the marriage. The hearing protocol states that the court examined the papers (including the January 23, 2003 decision, the parties' marriage certificate, plaintiff's birth certificate and passport, and the telegram sent to defendant), and that plaintiff paid the requisite state fee. The hearing protocol states that the court is adjoining to render an ex-parte judgment and that the hearing is closed.
The ex-parte judgment of divorce, dated January 29, 2003, rendered by Presiding Judge “Matveeva E.V.” states that the action was decided in open court and that the judgment provides the court's findings following the court hearing. The court finds, among other things, that the family was broken in March of 1997 and that the parties resided separately since that time, without any relations between the parties. The court states that plaintiff did not appear, but that his representative appeared in support of plaintiff's complaint, and also that defendant did not appear. The judgment states that, “[t]he defendant was notified regarding the time and place of the hearing,” and that “[t]he court found it possible to decide the lawsuit ex-parte in the absence of plaintiff and defendant and supported that decision.” The court further states that it “heard the plaintiff, examined written file documents and found that the plaintiff's complaint must be satisfied by the court.” The court finds that it is impossible for the parties to preserve a family and it dissolves the marriage. The judgment states that, taking into consideration that defendant was notified regarding the place and time of the hearing, that defendant did not perform his right to object the divorce and did not present any evidence of the possibility to preserve the marriage, the court believes that the future life of the spouses and reconciliation is impossible. The court finds that plaintiff's complaint is satisfied. The court also notes that the parties do not claim the separation of marital property.
Additionally, plaintiff alleges that, pursuant to Article 236, Part 2, of the Civil Procedure Code, the Russian court was required to serve the ex-parte Judgment of Divorce upon him, by mail with confirmation of acceptance, within three days after the Judgment was rendered. Plaintiff alleges that there is no evidence that the subject ex-parte Judgment was served upon him within the required time period, or that he confirmed acceptance of the Judgment.
Based upon the foregoing, plaintiff argues that the Russian Judgment of Divorce was “never obtained in full force and effect as a lawful and valid court judgment which dissolved the marriage.” Plaintiff cites the opinion of Krasnova that, pursuant to Article 25, Part 1 of the Family Code, a marriage dissolves at the time when the court judgment obtains “full force and effect.” According to Krasnova, Article 244 of the Civil Procedural Code provides that an ex-parte divorce judgment obtains full force and effect at the time when the parties' right for appeal has expired. Krasnova alleges that the time for appeal in the Russian action never began to run (pursuant to Article 237 of the Civil Procedural Code), because the parties were never properly served with the Judgment of Divorce. According to Krasnova, because the divorce was obtained in violation of the law, both parties in the Russian divorce action have a valid claim in the Russian court to declare the ex-parte Judgment of Divorce invalid.
Finally, plaintiff argues that defendant's delay in disclosing the Russian Judgment of Divorce in the instant action is unfair and prejudicial to him, making the principle of laches and estoppel applicable herein.
Defendant's Reply Affirmation and Opposition to Plaintiff's Cross–Motion
In reply, defendant preliminarily argues that Krasnova's affidavit should be disregarded by the court, because she fails to: (1) indicate that she is familiar with the facts and circumstances of the instant case; and (2) provide copies or English translations of the Russian codes cited in her affidavit.
Furthermore, defendant denies plaintiff's allegations regarding the execution of the Separation Agreement. Defendant also questions plaintiff's credibility regarding his claim that defendant solicited the Separation Agreement. Defendant points out that the Separation Agreement decided custody of the parties' son, but failed to set any amount for child support, even though at the time defendant was still a student and only worked part-time. Defendant avers that, if she had procured the Separation Agreement, she would have included provisions for defendant to pay her child support and maintenance.
Defendant also notes that plaintiff claims to have consulted with a lawyer in 2002 or 2003 regarding the validity of the Russian Judgment of Divorce. However, defendant points out that plaintiff fails to disclose the identity of this lawyer or state where the lawyer's office was located. Furthermore, defendant contends that plaintiff fails to offer any explanation as to why he commenced the instant action for divorce in 2007 when he had already procured a Russian divorce in 2003. Accordingly, defendant alleges that the instant action was commenced by plaintiff unnecessarily.Moreover, defendant reiterates that although plaintiff undisputedly knew about the Separation Agreement and the Russian Judgment of Divorce before he commenced the instant action in 2007, he failed to mention either of these documents in the complaint. Defendant asserts that plaintiff waited until all discovery had been completed in the instant case to attempt to attempt to invalidate the Separation Agreement and the Russian Judgment of Divorce. Defendant contends that if plaintiff felt that defendant would not recognize the Russian Judgment of Divorce, he could have commenced a plenary action to domesticate the foreign judgment before the six-year Statute of Limitations expired. Similarly, defendant argues that plaintiff could have commenced a plenary action to declare the Separation Agreement invalid, but is now barred from doing so by the applicable six-year Statute of Limitations.
Further, defendant avers that plaintiff should be collaterally estopped from denying the validity of the Russian Judgment of Divorce. According to defendant, there is an identity of interest between the parties, because the Russian action and the instant action involve the same plaintiff and defendant. Additionally, defendant alleges that the issue of the termination of the marriage is the same in both actions. Defendant points out that plaintiff never moved to set aside the Judgment of Divorce in the Russian court, despite the fact that he had over nine years to do so. Defendant further avers that plaintiff's counsel has known about the 2002 Separation Agreement since at least 2008, when he submitted the Separation Agreement as an exhibit in response to a motion. Defendant asserts that plaintiff is guilty of laches with respect to the Russian Judgment of Divorce, because of his delay in seeking to invalidate it.
Defendant also contends that plaintiff has not shown that he will be prejudiced by the enforcement of the Separation Agreement. Defendant maintains that when the instant action was commenced, the parties were living separate and apart and there was no property to distribute.
Finally, defendant requests that this court sua sponte dismiss the instant action for divorce based upon forum non conveniens, without prejudice to plaintiff bringing an action and/or proceeding in Russia to invalidate, if possible, the Russian Judgment of Divorce. Defendant notes that she does not oppose the enforcement of the Russian Judgment of Divorce. According to defendant, the instant action for divorce is being prosecuted frivolously by plaintiff.
Discussion
Validity of the Separation Agreement
The Law
Initially, the court notes that, pursuant to DRL § 236(B)(3), “a nuptial agreement made before or during the marriage must satisfy three requirements to be valid and enforceable in a matrimonial action: First, the agreement must be in writing. Second, it must be subscribed by the parties and third, it must be acknowledged or proven in the manner required to entitle a deed to be recorded” ( Einhorn v. Einhorn, 24 Misc.3d 1250(A), *8 [2009], citing Matisoff v. Dobi, 90 N.Y.2d 127, 130 [1997] ). “This provision authorizes spouses or prospective spouses to contract out of the elaborate statutory system and provide for matters such as inheritance, distribution or division of property, spousal support, and child custody and care in the event that the marriage ends” ( Einhorn at *8, citing Kessler v. Kessler, 33 AD3d 42, 46 [2d Dept 2006], lv dismissed8 NY3d 968 [2007] ). “It is also clear that a separation agreement is a contract subject to the principles of contract construction and interpretation and where the contract is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the agreement” ( Einhorn at *9). “Relief from a stipulation of settlement will only be granted upon a showing of good cause sufficient to invalidate a contract” (Hardenburgh v. Hardenburgh, 158 A.D.2d 585, 585 [2d Dept 1990] ).
In consideration of the instant dispute, “it must also be recognized that stipulations of settlement are favored by the courts and are not lightly set aside” ( Einhorn at *10). “Hence, judicial review of separation agreements is to be exercised sparingly, with a goal of encouraging parties to settle their differences on their own” ( Einhorn at *10, citing Brennan–Duffy v. Duffy, 22 AD3d 699, 699–700 [2d Dept 2005] ). In disposing of the issues raised herein, the court must also recognize that a challenge to a postnuptial agreement will view the agreement in its entirety under the totality of the circumstances ( see Reiss v. Reiss, 21 AD3d 1073, 1074 [2d Dept 2005] ). Moreover, a court cannot, under the guise of contractual interpretation, rewrite an agreement (Attea v. Attea, 30 AD3d 971 [2006] ).
“A party seeking to set aside a separation agreement or a stipulation of settlement in a divorce action, each of which is fair on its face, must prove fraud, duress, or overreaching, or that the agreement or stipulation is nonetheless unconscionable” (Korngold v. Korngold, 26 AD3d 358 [2d Dept 2006] ). It has also been held that “the acceptance of the terms of a separation agreement, by payment or acceptance of payment, constitutes ratification” (Niosi v. Niosi, 226 A.D.2d 510, 511 [2d Dept 1996]; see also generally Gaines v. Gaines, 218 A.D.2d 683 [2d Dept 1995] [where wife accepted substantial benefits under the stipulation of settlement, she is deemed to have ratified the agreement and is precluded from attempting to set it aside] ). Additionally, “[a] party who executes a contract under duress and then acquiesces in the contract for any considerable length of time ratifies the contract” (Niosi, 226 A.D.2d at 512 [internal citations and quotation marks omitted] ).
Moreover, as is relevant herein, “[a] separation agreement which does not merge into the judgment of divorce survives as a separate contract to which the parties are bound” (Riley v. Riley, 179 A.D.2d 750, 750 [1992] ). “A valid and subsisting separation agreement will not be viewed as terminating with the grant of a divorce decree where either the agreement itself or the decree provides that the agreement is intended to survive the divorce judgment” (47A N.Y. Jur.2d Domestic Relations § 1978, “Effect of divorce decree where agreement is not merged into judgment of divorce”). “Such an agreement may serve as the basis for a later suit, independent of any of the procedures available for enforcing the decree” 47A N.Y. Jur.2d Domestic Relations § 1978). “Consequently, while a judgment of divorce may be attacked pursuant to CPLR 5015, the separation agreement will remain unimpeached unless challenged in a plenary action” (Riley, 179 A.D.2d at 750;see also Makara v. Makara, 65 AD3d 1018, 1019 [2009][the proper vehicle for challenging the propriety of a Separation Agreement is to commence a plenary action] ).
Discussion
As a threshold matter, the court will first address whether a plenary action is required to resolve the instant dispute regarding the validity of the Separation Agreement. The court notes that the subject Separation Agreement is not incorporated into the Russian Judgment of Divorce. Specifically, the Separation Agreement states that the “obligations and covenants of this Agreement shall survive any decree or judgment of divorce or separation and shall not merge therein, and this Agreement shall be enforced independently of such decree or judgment.” The Russian Judgment of Divorce also does not, by its terms, specifically incorporate the provisions of the Separation Agreement. Thus, the Separation Agreement exists as a separate contract which is not dependent on the validity of the Russian Judgment of Divorce.
The court finds that plaintiff's attempt to attack the separation agreement through a motion, without commencing a plenary action, is fatal to his application ( see e.g. Riley, 179 A.D.2d at 750). As mentioned above,
“a Stipulation of Settlement which as here is incorporated, but not merged, into a Judgment of Divorce, survives as a separate contract to which the parties are bound. Such a contract cannot be modified in a post-judgment application by motion and can only be challenged or reformed in a plenary action which provides a context in which to develop a record adequate to evaluate defendant's claims”
(Lambert v. Lambert, 142 A.D.2d 557 [2d Dept 1988]; see also e.g. Weissman v. Weissman, 68 AD3d 981 [2d Dept 2009] [the Appellate Division, Second Department held that where the parties' stipulation of settlement was incorporated but not merged into the judgment of divorce, it was an independent contract and could be challenged only by way of a plenary action; see also e.g. Dombrowski v. Dombrowski, 239 A.D.2d 460 [2d Dept 1997] [the Appellate Division, Second Department found that the trial court properly denied plaintiff's post-judgment motion to set aside a stipulation of settlement which was incorporated but not merged into the judgment of divorce, since a party can challenge the terms of such an “independent contract” only by way of a plenary action; the Appellate court modified the order by adding that plaintiff's motion was denied without prejudice to the commencement of a plenary action] ). The instant challenge involves contrasting allegations regarding the execution and validity of the Separation Agreement, an independent contract. These circumstances require a separate plenary action where an adequate record could be developed in order to evaluate the parties' claims.
However, the court notes that, “[e]ven if [plaintiff] had properly initiated this application through a plenary action, it would have been time-barred by the six-year Statute of Limitations set forth in CPLR 213(1) governing equitable actions” ( Riley at 750). Plaintiff did not move to vacate or modify the Separation Agreement for over nine years after its execution and, therefore, he cannot challenge it at this late date ( see generally Riley at 750).
Herein, the parties have lived separate and apart, as called for in the separation agreement, for nearly ten years. The parties also settled any existing and future claims of equitable distribution in the Separation Agreement. Neither party moved to modify the terms of the Separation Agreement after its execution. It is further undisputed that plaintiff did not seek equitable distribution in the Russian action for divorce. Plaintiff was not required to pay any child support to defendant in the Separation Agreement. The court finds that plaintiff and defendant both acquiesced to the provisions of the Separation Agreement for nearly ten years; plaintiff cannot now, after a considerable amount of time has passed since its execution, attempt to set the Separation Agreement aside in the instant action for divorce. Under these circumstances, it must be concluded that both plaintiff and defendant ratified the terms of the agreement ( see generally Riley at 750; see also generally Glaser v. Glaser, 127 A.D.2d 741 [1987] ).
As stated above, the court has already determined that a plenary action was required on the instant facts, but that such an action is now untimely pursuant to CPLR 213. Consequently, the court need not address the remainder of plaintiff's allegations concerning the alleged fraudulent execution of the Separation Agreement. Nevertheless, the court notes that, although plaintiff claims that he did not appear before a notary, it is undisputed that plaintiff did, in fact, sign the agreement. Thus, at the very least, plaintiff knew that the agreement existed and he is charged with an awareness of its terms. His failure to read the entire agreement and claimed lack of proficiency with the English language are not valid reasons to deny the validity of the agreement ( see generally Pimpenello v. Swift & Co., 253 N.Y. 159 [1930] ). Additionally, when a marital agreement on its face bears the signatures of the parties and the acknowledgment taken before a notary public whose signature appears on the document, a presumption of due execution arises which may be rebutted only by a showing of clear and convincing evidence ( see generally Smith v. Smith, 263 A.D.2d 628 [1999] ). Plaintiff's allegations that the Separation Agreement was procured by fraud and duress are not substantiated by proof sufficient to invalidate the agreement ( see generally Weiner v. Weiner, 281 A.D.2d 989 [2001];see also generally Sabowitz v. Sabowitz, 36 Misc.3d 1222(A) [2012] ). Additionally, pursuant to CPLR 213, plaintiff's allegations of fraud are untimely, because the cause of action was not brought within six years from the date the cause of action accrued or two years from the date the alleged fraudulent acts could or should have been discovered ( see generally Sabowitz, 36 Misc.3d at *8). Moreover, despite plaintiff's allegations regarding the defective execution of the Separation Agreement and defendant's duress in forcing him to sign the agreement, the court has already found that plaintiff ratified the Agreement.
Accordingly, defendant's motion is granted to the extent that the court declares the Separation Agreement to be valid. Plaintiff's cross motion seeking a declaration that the Separation Agreement is invalid is denied. Validity of the Russian Judgment of Divorce The Law
As this court noted in the decision rendered in Tsirlin v. Tsirlin (19 Misc.3d 1132 A [2008] ), a “divorce action may lie in New York only if the parties are still married” ( id. at 5, quoting Gotlib v. Ratsutsky, 83 N.Y.2d 696, 699 [1994] ). Therefore, if the Russian Judgment of Divorce is valid and binding on the parties herein, plaintiff's action for a divorce must be dismissed ( see Vartsaba v. Vartsaba, 20 Misc.3d 1145 A, *4 [2008] ).
“In deciding whether the [Russian Judgment of Divorce] 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 N.Y.2d 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).'
( Vartsaba, 20 Misc.3d at *4,quoting Aranoff v. Aranoff, 226 A.D.2d 657, 658 [2 Dept., 1996] ). “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” ( Vartsaba at *4; see e.g. Schaeffer v. Schaeff er, 294 A.D.2d 420, 421 [2 Dept., 2002]; Azim v. Saidazimova, 280 A.D.2d 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.' “
( Vartsaba at *4, quoting Gotlib, 83 N.Y.2d at 699–700;see also In re Caputo, 266 A.D.2d 538, 539 [2 Dept., 1999] ).
Moreover, “[a] divorce decree granted by a foreign country will also be accorded comity by the State of New York where the jurisdiction of the foreign tribunal was predicated upon the consent of both parties, and residency, rather than domicile, was established by a statutory brief contact' through the appearance of one of the parties ( T.T. v. K.A., 20 Misc.3d 1104 A, *3 [2008] ). “A foreign decree obtained on the ex parte petition of a spouse will not be recognized in New York, where the other spouse did not appear and was not served with process in the foreign action” ( T.T., 20 Misc.3d at *3).
“Under certain circumstances, a court of this State, in its discretion, may accord comity to a divorce decree granted by a foreign country for the limited purpose of recognizing the termination of the parties' marriage, however said court may exercise jurisdiction to determine financial issues ancillary to said foreign divorce pursuant to the laws of this State” ( id. at *3.). “Where one spouse is a resident of a foreign country and the nonresident spouse is afforded sufficient notice of a divorce proceeding, but the foreign country does not acquire personal jurisdiction over the nonresident spouse, any divorce obtained in the foreign country is in rem only, and same will terminate the parties' marital status, but will not affect the nonresident spouse's marital economic rights ( id. at *3.).
“With respect to the issue of equitable estoppel, the law is clear that neither inaction nor delay in contesting a foreign divorce constitutes laches” (Kushnick v. Kushnick, 196 Misc.2d 140 [2003] ). “Estoppel based on laches is appropriate only where the Court finds that the conduct of a party induced a change of position or resulted in a substantial prejudice to the other party such that the lapse of time and the intervention of circumstances render it unjust for the Court to aid a party seeking to challenge a foreign decree” (Kushnick, 196 Misc.2d at 144).As is also relevant herin, CPLR 4511(b) provides that:
“Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions. Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice.”
Finally, CPLR 3016(e) provides that “[w]here a cause of action or defense is based upon the law of a foreign country or its political subdivision, the substance of the foreign law relied upon shall be stated.” Where ... the record reveals a total failure' to prove foreign law, the parties have consented that the forum law be applied to the controversy” (Bank of New York v. Nickel, 14 AD3d 140, 149 [2004],lv dismissed4 NY3d 846 [2005],quoting Watts v. Swiss Bank, 27 N.Y.2d 270, 276 [1970];see also Storozynski v. Storozynski, 10 AD3d 419, 420 [2004] [since the parties neither invoked Polish law nor supplied applicable citations to it as is required pursuant to CPLR 4511(b), they were presumed to agree that the law of New York controlled the interpretation of the agreement at issue] ).
Discussion
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 Aranoff, 226 A.D.2d at 657). Herein, defendant relies upon a facially valid decision from a Russian court that dissolved her marriage to plaintiff. The doctrine of comity has particular application to the instant case because it was plaintiff himself who invoked the jurisdiction of the Russian courts and procured the Judgment of Divorce which he now seeks to invalidate ( see e.g. Prges v. Louis–Dreyfus, 280 AD 277, 283 [1952] ). Plaintiff fails to prove that the facially valid Russian Judgment of Divorce is invalid pursuant to Russian or New York law. Plaintiff points to an absence of evidence that defendant was properly served in the Russian action for divorce, however, he submits no affirmative evidence that defendant was not served in that action. Plaintiff relies upon an alleged discrepancy in the date of the Power of Attorney he signed to show that the Russian court presiding over the action did not, in fact, have jurisdiction over him. However, plaintiff fails to offer sufficient proof that this discrepancy would invalidate the Russian Judgment of Divorce. Plaintiff also fails to submit the substance of the Russian statutes that he references in support of his claims ( seeCPLR 4511[b] and CPLR 3016[e] ), nor does he submit any evidence that the divorce file offered by Krasnova is a certified copy of the Russian court's file. Krasnova's affidavit is conclusory and does not provide sufficient evidence to invalidate the Russian Judgment of Divorce.
Plaintiff does not dispute that he signed a Power of Attorney authorizing his legal representative to appear in court on his behalf in the Russian action. Defendant does not contest the service allegedly made upon her in the Russian action and, in fact, seeks to validate the Russian Judgment of Divorce procured by plaintiff. Under the circumstances, the court finds that it is appropriate to extend the principle of comity to the Russian Judgment of Divorce. In so holding, the court notes that plaintiff's allegations are legally insufficient to warrant a finding that the Russian Judgment of Divorce is without effect.
As mentioned above, “[t]he general rule is that a foreign divorce decree obtained on the ex parte petition of a spouse, present but not domiciled in the foreign country will not be recognized in New York where the other nonresident spouse does not appear and is not served with process” (Farag v. Farag, 4 AD3d 502, 504 [2004],quoting Steffens v. Steffans, 238 A.D.2d 404, 405). Plaintiff relies heavily on Farag v. Farag (4 AD3d 502 [2004] ) to suggest that the Russian Judgment of Divorce should be declared invalid. In Farag, the court denied recognition to an ex-parte Egyptian “Bill of Revocable Divorce” where there was no evidence that the husband followed proper procedures in obtaining the divorce ( see Farag, 4 AD3d 502). In Farag, it was undisputed that the plaintiff never informed the defendant that he was traveling to Egypt to obtain a divorce decree, and there was no evidence that the plaintiff had followed proper procedures for obtaining that decree.
In the instant case, while plaintiff was not physically present nor domiciled in Russia at the time the judgment of divorce was entered, he did sign a Power of Attorney authorizing a legal representative to appear in Russian court on his behalf. Plaintiff alleges that even though the Russian judgment states that defendant received notice of the action via a telegram sent to a Moscow address, that the absence of a return receipt in the divorce file proves that defendant was not properly served. He also alleges that the defendant's address in the Russian divorce file was a Moscow address, even though defendant claims to have been a resident of Brooklyn since the parties' separation. The court finds that the instant case is distinguishable from Farag, because defendant does not contest the service allegedly made upon her by the Russian court, nor does she seek to invalidate the Russian Judgment of Divorce procured by plaintiff. Defendant insists that she was aware of the Russian action for divorce and that she received a copy of the Russian Judgment of Divorce. The parties submitted a Russian Judgment of Divorce that appears facially valid. The parties also have connections to Russia in that they were married there and lived there together prior to moving to the United States in 1997. It is further undisputed that defendant visited Moscow frequently for work purposes during the parties' separation. Plaintiff has also admitted that she has family in Russia and inherited property there following the parties' separation. The court finds that the alleged lack of evidence of proper service upon defendant is not dispositive here.
Moreover, even if the Russian court did not obtain personal jurisdiction over defendant, the Russian Divorce would nevertheless be upheld by this court as an adjudication of the marital status of the parties. The court recognizes that without personal jurisdiction, the judgment would not have affected the economic rights of the parties ( T.T., 20 Misc.3d at *3), but this is of no import here, since the issues of equitable distribution and support were already settled by the parties' valid Separation Agreement. If the Russian court lacked personal jurisdiction over defendant, this is determinative of the ability of the Russian court to render a judgment affecting the parties' marital status ( see e.g. Will of Brown, 132 Misc.2d 811 [1986][where the court noted that the Korean court's want of jurisdiction over plaintiff was not relevant in determining the ability of the Korean court to render a judgment affecting the marital status of the parties] ). Plaintiff had a reasonable relationship to Russia when the action for divorce was commenced and these contacts were sufficient for the Russian court to validly effect the marital status.Accordingly, applying the above discussed principles of comity, the court recognizes the Russian Judgment of Divorce to the extent that it validly terminates the marital status of the parties ( see generally Gotlib, 83 N.Y.2d 696;Greschler, 51 N.Y.2d 368). Defendant's motion is granted insofar as the court declares that the Russian Judgment of divorce validly terminates the parties' marital status. Plaintiff's cross motion seeking a declaration that the Russian Judgment of Divorce is invalid is denied.
As noted above, a “divorce action may lie in New York only if the parties are still married” ( Tsirlin, 19 Misc.3d at 5,quoting Gotlib v. Ratsutsky, 83 N.Y.2d 696, 699 [1994] ). Therefore, because the court has determined that the Russian Judgment of Divorce is valid insofar as it terminates the marital status of the parties, plaintiff's action for a divorce must be dismissed ( see generally Vartsaba, 20 Misc.3d at *4).The foregoing constitutes the decision, order and judgment of the court.
Conclusion
Accordingly, it is hereby:
ORDERED that defendant's motion is granted to the extent that the Separation Agreement and the Russian Judgment of divorce terminating the parties' marital status are declared valid; and it is further
ORDERED that plaintiff's cross motion seeking a declaration that the Separation Agreement and the Russian Judgment of Divorce are invalid is denied; and it is further
ORDERED that plaintiff's action for divorce is dismissed.
The foregoing constitutes the decision, order and judgment of the court.