Opinion
No. FA05 400 99 27
July 3, 2006
MEMORANDUM OF DECISION
This is an action for annulment of a marriage that occurred in Port Chester, New York on April 26th of 2001. The plaintiff alleges nullity on the grounds of fraud and a void or voidable marriage.
The court will find service on the defendant by publication in the Shore Line Newspapers. The court will further find that the non-appearing defendant is not in the military service based upon the sworn affidavit filed with the court by the plaintiff.
Based upon the evidence presented, the court further finds that there are no minor children, issue of this marriage, and that neither party has been the recipient of state or municipal financial assistance.
With respect to the plaintiff's claims regarding nullity of the marriage on grounds of fraud, and a void or voidable marriage, the plaintiff presented evidence that the defendant planned to move in with him, when he agreed to marry her. The defendant had a son of similar age to the plaintiff's son. The defendant was worried about her son being deported to Russia, which at the time would have resulted in his being automatically being sent to Chechnya. He testified that he never cohabited with the defendant and that she never moved in with him. He further testified that in a meeting at a train station "they" tried to get him to sign adoption papers for the defendant's son, which he declined to do. Later it came to his attention that there was a gentleman in New York who considered the defendant to be his common-law wife.
The plaintiff represented that, if he had known that she had lived with this other man, who considered her to be his wife, the plaintiff would have considered her to be married. In support of this claim of the defendant's "common-law marriage," the plaintiff introduced into evidence a photocopy of a notarized document signed by one Rostislav M. Savitzky, dated February 18, 1999. This document indicates that the defendant resided with him since September 15, 1993, and refers to her as his "common law wife."
The document further indicates that he was the sponsor for her son Juri Volkanov, during his studies at the New York Military Academy 1996-1997, and that he intended to adopt him. Finally the document indicates that, in consideration for her loving, caring relationship to him, Mr. Savitzky was bequeathing to the defendant the "joint" residence located in Jamaica, New York.
Plaintiff's claimed grounds for the annulment he seeks must be considered under the law of the State of New York where this marriage occurred. Pursuant to New York law, in order for the plaintiff to succeed in proving his entitlement to an annulment based on fraud in the inducement, it is necessary for him to prove that the defendant made premarital representations to him, upon which he relied, and which were material to the degree that, had such representations not been made, plaintiff would not have consented to the marriage. (See Kober v. Kober, 16 N.Y.2d 191, 194-95; Di Lorenzo v. Di Lorenzo, 174 N.Y.2d 467, 471.) There was no evidence of any representations made to the plaintiff by the defendant. Silence on the part of the defendant cannot be equated with a promise or representation made by her. (See Brazil v. Brazil, 235 A.D.2d 611, 613 [3d Dept 1997.]) Further the fraud must be of such a nature that an ordinarily prudent person would be deceived. (See Kober v. Kober, supra, at 195; Di Lorenzo v. Di Lorenzo, supra, at 474-75.) This court cannot find that an ordinarily prudent person would have been deceived into a marriage based upon the defendant's failure to disclose a past cohabiting relationship with another man. In fact, the general rule is that a marriage covers with oblivion any antenuptial incontinence and lapses from virtue. (See Wirth v. Wirth, 175 Misc. 342, 344 (1940). The court further notes that common-law marriage is not recognized in the State of New York, any legal status of same having been abolished in 1933.
Accordingly, the court finds that the plaintiff has failed to adduce evidence sufficient for the court to find grounds for the annulment he seeks, and the application for a decree of annulment of this marriage is denied. At the hearing of this matter, the plaintiff orally requested that the court grant him a dissolution of the marriage, if the court found the evidence insufficient to support an annulment. As indicated to the plaintiff at the time of his request, the court has no authority to dissolve the marriage, as neither the original complaint, nor the published notice to the defendant, referenced a dissolution action.