Legislative response often lags behind societal demand for immediate gratification. The courts, in an effort to redress legislative procrastination, may use their interpretative and discretionary powers to find a basis in existing law to resist or embrace the change within the confines of reason and precedent. A law which seemingly has outlived its historical purpose or whose application results in unfair (though legal) distinctions, is nonetheless a law to be reckoned with by the courts.
Many existing laws are perceived by the public as onerous and unfair. Citizens have been known to take the law into their own hands as evidenced by the thousands of acts of falsely filed tax returns. The taxpayer who under-reports income or fails to file a return invites criminal consequences for fraud under Article 37 of New York’s tax laws. Prior to the 2009 revision of the tax fraud provisions, the courts were faced with an enforcement scheme that punished exaggeration of charitable deductions on a return as a felony, while the millionaire cheater who failed to file was only chargeable with a misdemeanor. Notwithstanding the inequity of result in its application, it was the law until the legislature, in an effort to close the annual multi billion dollar gap between taxes due and collected, changed the provisions that had been in effect since 1985. Now, so long as a taxpayer creatively and within the confines of the existing law lowers his tax liability, there is no crime, nor is there harm, nor foul to the integrity of the legal system.
Like the 1985 fraud provisions of Article 37, reform of the “grounds” provisions of the Domestic Relations Law are long overdue. For years, various proposed bills for “No Fault” divorce in New York based upon “irreconcilable differences” have died in the legislature. Presently, there are six statutory grounds for divorce; four of the six are “fault” based. Only divorces based upon living separate and apart pursuant to a written separation agreement or a decree or judgment of separation for one or more years prior to the commencement of an action, require no allegations of fault. “Grounds” trials are the anathema of the bench and the bar. However, until such time as a new law is enacted, parties seeking a divorce must comply with existing laws – or do they?
Consider the recent decision in Andrew T v. Yana T, (1/5/10 NYLJ), Supreme Court for New York County, December 24, 2009, in which the plaintiff and defendant wove a tangled web of deceit in their efforts to obtain a divorce. Mr. T filed for divorce after 15 months of marriage in September 2007, pleading two causes of action for divorce:
“Constructive abandonment,” defined in Domestic Relations Law 170(2) as the unjustifiable refusal of one spouse to engage with the other for a continuous period of more than one year prior to the commencement of a matrimonial action despite repeated request for resumption of sexual relations; and o “Cruel and inhuman treatment,” Domestic Relations Law 170(1).
Mrs. T did not dispute grounds. The parties entered into a separation/settlement agreement in June, 2008 which could have served as grounds for divorce without an allegation of fault had they waited the requisite one year in compliance with existing law.
By affidavit, Mrs. T admitted service of the complaint based upon constructive abandonment and consented to the matter being placed on the uncontested calendar. At that point, the pleadings would have been certified by counsel for both parties, which, along with the requisite affidavits for divorce of each of the parties would be filed with the Court with the proposed judgment of divorce.
Pursuant to 22NYCRR section 130-1.1 attorneys are required to certify that after reasonable inquiry under the circumstances, the contentions in every pleading, written motion and other paper served on another party or submitted to the Court are not frivolous upon information and belief. Though “the Rules” may be constraining at times as well as unpopular, to ignore and circumvent them may result in removal from practice as in the case of a conviction for a felony.1
On July 29, 2008, a judgment of divorce was entered ending the marriage based upon constructive abandonment. Defendant neither denied plaintiff’s allegations nor submitted a counter proposed judgment of divorce deleting the provision from the proposed judgment whereby the court found that “there are no children born of the marriage, nor are any expected.”
All’s well that ends well until Mr. T discovered after the entry of the divorce judgment that Mrs. T, while still married to him, gave birth to a son in March of 2008. The fact that Mr. and Mrs. T were still legally married at the time of the child’s birth impacts on the child’s paternity. (Parties are legally married until the entry of a final judgment of divorce.) A child born during a marriage is presumed to be legitimate, and the child of the parties to that marriage, although that presumption is rebuttable. Therefore this child, born before the entry of the divorce judgment was presumed to be the child of Mr. T. Mr. T brought a post judgment motion to compel a paternity test.
Mrs. T objected, seeking to estop Mr. T from asserting his paternity, a position contradictory to his sworn statement in the prior matrimonial action. While collateral or equitable estoppel theories in which prior inconsistent statements are used to prevent a litigant from taking a different position at a later point in the same proceeding or a subsequent action have been judicially imposed to prevent a father from denying paternity, much less common is using the estoppel theory to roadblock an affirmation of paternity.
Mrs. T also asserted that Mr. T committed perjury in violation of the Penal Law; a law, no doubt enacted to insure the integrity of the judicial process in the pursuit of the truth.2 The basis of her claim was that Mr. T swore in his affidavit to obtain the divorce that he had no sexual relations with his wife for at least one year prior to September 2007 when he commenced the divorce action. Mrs. T gave birth in March of 2008, thus the conception of the child occurred during the period when Mr. T swore the parties had no sexual relations. (There is no indication in the decision as reported that the child’s birth was premature.)
The Court noted that while Mrs. T raised the issue of her ex-husband’s perjury, she failed to justify her own “unclean hands” in obtaining the divorce rather she, in pari delicto, acquiesced in the “alleged” perjury. Mrs. T, as a defendant in the matrimonial action, did not interpose an answer to the complaint wherein she would have had to admit or deny the allegations of the complaint that there was no child of the marriage nor was a child expected nor did she inform the court of her pregnancy or the birth of the child. She was complicit in what may very well prove to be a fraud perpetrated on the court. Would reasonable inquiry or observation under circumstances by her attorney pursuant to professional rules of conduct have revealed the defendant’s pregnancy?
Plaintiff’s motion for a paternity test was granted based upon a “best interests of the child” analysis. The court refused to leave the child without a father but dismissed the perjury allegation. Mr.T’s paternity was presumed, and therefore it was his burden to disprove it. The Court was without jurisdiction to determine perjury, however, the Court in its discretion could have referred the matter to the District Attorney for investigation since the record suggested perjury had been committed.3 As officers of the Court, attorneys are obligated to uphold the integrity of the system as exemplified in the Rules of Professional Conduct, effective April 1, 2009.4
“A lawyer who represents a client before a tribunal and knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” 5
“A lawyer shall not: … knowingly use perjured testimony or false evidence…”6
Turning a blind eye to suspect behavior in this matter of both litigants and counsel, the Court determined that “Although perjury of any kind is not to be condoned, the context in which it arises must be taken into consideration,” the context being that New York “… is positively regressive as concerns the institutions of marriage.” The judge concluded “the integrity of our legal system here in New York will continue to be needlessly compromised” until such time as New York permits “no-longer loving, consenting adults to obtain a divorce for reasons that are real rather than fabricated so as to meet some archaic legal requirement.” Selective compliance and enforcement of the laws “needlessly compromises” the integrity of the legal process as well.
Nancy E. Gianakos is a matrimonial and family law practitioner, Of Counsel, to Albanese & Albanese, Garden City, NY. She is a member of the NYSBA, Nassau County Matrimonial and Familly Law Committees, the American Family Law Inns of Court and the New York Association of Collaborative Professionals. For more information and articles published by Ms. Gianakos go to www.albaneselegal.com. .
1. See Judiciary Law section 90, N.Y.Ct.Rules section 691.
2. New York Penal Law section 210. 05- 210.15. Perjury in the first degree is a Class A misdemeanor; in the second degree, a Class E felony and in the third degree, a Class D felony. All three require a swearing or administration of an oath.
3. Stergiopoulos v. Gklotsos, 7/15/04 NYLJ 20, col.3 (Dist.Ct., Nassau County).
4. The Rules of Professional Conduct cited supra became effective April 1, 2009 subsequent to the commencement of the subject matrimonial action; the attorneys’ conduct at that time would be governed by the Code of Professional Responsibility (Formerly, the Lawyer’s Code of Professional Responsibility).
5. Rules of Professional Conduct 3.3(b).
6. Rules of Professional Conduct 3.4(a)4.
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