Decisions of Interest

The defendant wife denied the marriage was invalid and counterclaimed for divorce. She argued, inter alia, that the plaintiff should be estopped from arguing that the marriage was void because he had stated on the couple's joint tax returns that they were husband and wife. She pointed to the decisions in Mahoney-Buntzman v. Buntzman, 12 NY3d 415 (2009) and Naghavi v. New York Life Ins. Co., 260 AD2d 252 (1999) for the proposition that a party to a litigation is estopped from asserting a position contrary to that taken on his or her tax return.

The trial court determined, and the appellate court agreed, that although this maxim is true under most circumstances, an invalid marriage cannot be retroactively validated by estoppel or by the parties' own conduct. Therefore, the husband was not estopped from challenging the validity of his marriage. However, the Third Department found that the trial court's marriage invalidity declaration was based on the outdated case law found in Ranieri v. Ranieri, 146 AD2d 34 (1989), the only appellate decision in New York addressing the question of whether a minister of the ULC has authority in the state to perform marriages.

“Ranieri was decided a quarter century ago,” the Third Department observed, “and we simply cannot presume that the belief system, structure and inner workings of the ULC have remained static since that time. With the issue having resurfaced, we find it appropriate to address [the legitimacy of the ULC as a church in accordance with New York law] anew.” As the record on this issue had not been developed at trial, the court reversed and remanded for further proceedings.

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Continued Employment Difficulties Do Not Prove Changed Circumstances

Supreme Court erred in ordering a man to pay his ex-wife maintenance for 20 months beyond the originally agreed-upon term because, although she remained unemployed, this possibility had been specifically acknowledged in the original agreement. McKay v. McKay, 2013 N.Y. App. Div. LEXIS 2739; 2013 NY Slip Op 2806 (3d Dept. 4/25/13) (Mercure, J.P., Spain, McCarthy and
Egan Jr., JJ.).

The husband appealed from an order directing him to pay maintenance to his ex-wife beyond the term originally set out in the parties' stipulation of settlement, which was 3.5 years. The stipulation acknowledged that the wife needed maintenance because she was, at the time of divorce, unemployed and unemployable due to mental and physical disabilities and her plans to become a full-time student. Because the wife remained unemployed at the end of 3.5 years, she later moved for an extension of the maintenance term, which Supreme Court, Albany County, granted by modifying the stipulation of settlement. The husband appealed.

After noting that maintenance awards based on stipulations of settlement incorporated but not merged into the judgment of divorce may be altered by the court only if an unanticipated and unreasonable change in circumstances has taken place resulting in extreme financial hardship to one of the parties, and that the party seeking the alteration bears the burden of demonstrating such change, the appeals court concluded that the wife had fallen short on this score. There was no real unanticipated changed of circumstances here, stated the Third Department,' because “the parties expressly recognized the wife's employment status and prospects, as well as the existence and nature of her disabilities, her plans to apply for disability benefits and her anticipated status as a full-time student, at the time they entered into the stipulation agreement.” In addition, because the wife's evidence of financial hardship was not reliable, the court concluded she had not proven that she would suffer such hardship without an extension of maintenance. Thus, the court reversed the order requiring the husband to pay maintenance for an additional 20 months.

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BIA Says Marriage Not Entered Into in Good Faith: No Federal Court Review

The U.S. Court of Appeals for the Second Circuit has dismissed a woman's petition for review of a decision rendered by the Board of Immigration Appeals (BIA) after finding that it did not have jurisdiction to review this BIA decision concerning the basis of the would-be permanent resident's marriage. Montague v. Holder, 2013 U.S.Appl. LEXIS 8285 (2d Dept. 4/24/13) (Kearse, Walker and Chin, Circuit Judges).

The petitioner, a Jamaican national, married an American man and petitioned for lawful permanent resident status in the United States in 1987. According to the Immigration
and Nationality Act (INA), an alien married to an American citizen who petitions for lawful permanent resident' immigration status within two years of the marriage will be granted it only conditionally. 8 U.S.C. ” 1151(b)(2)(A)(i), 1154(a)(1)(A), 1186a(a)(1)(2006). In order to be eligible to become a full permanent resident, the parties must jointly file a petition to remove the condition within two years of the alien spouse's grant of conditional permanent resident status. 8 U.S.C. ” 1186a(c)(1)(A), (c)(2)(A)(i).

The petitioner sought to be excused from the requirement of filing the joint petition with her spouse. An alien spouse may be so excused by the Attorney General if, at his discretion, he determines that the conditional permanent resident's “qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to [file a timely joint petition].” 8 U.S.C. ' 1186a(c)(4)(B).'

The petitioner presented the immigration judge (IJ) with evidence that she had been forced to leave her husband due to abuse and that she lacked documentary evidence of her marriage because of the circumstances under which she left the marital home and the length of time since the marriage had ended. The IJ found discrepancies in her story, however, and on Dec. 1, 2009, concluded that she had failed to prove she entered into the marriage in good faith. The petitioner appealed this decision to the Board of Immigration Appeals (BIA), which affirmed.

The petitioner next appealed to Second Circuit appellate court, claiming it had authority to review the decision because her waiver application was filed with the federal authorities before the 2005 enactment of the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, the statutory provision that bars judicial review of discretionary decisions made by the Attorney General. The Second Circuit rejected this argument, however, because that provision was introduced in 1996, in the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009. See 8 U.S.C. ' 1252(a)(2)(B)(ii)(2000).

The U.S. Circuit Courts can, however, review constitutional questions or questions of law. 8 U.S.C. ' 1252(a)(2)(B). But the Second Circuit found that the petitioner's challenges in this case were to factual determinations made by the IJ and adopted by the BIA. The court explained: “Although petitioner attempts to frame her challenge as a question of law by stating that the agency 'totally overlooked and/or seriously mischaracterized' certain items of evidence and statements of purported witnesses, ' the decision of the IJ and the BIA belie this argument.” CF. Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009) (per curiam) (finding error of law where the agency 'totally overlooked' and 'seriously mischaracterized' certain factors important to the determination of petitioner's claim).” Because the appeal did not raise any questions of law or constitutional claims, the court concluded that it lacked jurisdiction to review the decisions of the immigration authorities.

Reconsideration Not Warranted When Based on New Allegations

The U.S. District Court for the Southern District of New York has declined to reconsider its 2012 dismissal of a woman's complaint alleging her ex-husband committed fraud when obtaining their French divorce, after concluding that the remedy of reconsideration is not available based on newly presented evidence; reconsideration is appropriate only when the court has overlooked or disregarded statutory or case law that was before it when it made its original decision. De Ganay v. De Ganay, 2013 U.S. Dist. LEXIS 60889 (S.D.N.Y. 4/29/13).

The plaintiff ex-wife brought suit in the U.S. District Court against her ex-husband, whom she claimed lied about a Paris apartment he claimed as separate property to the French court that issued their divorce. When he did not answer her fraud complaint, the plaintiff moved for default judgment, which the court denied, finding that it lacked jurisdiction to hear the case.

On motion for reconsideration, the plaintiff claimed the district court was authorized to hear her case because it had personal jurisdiction over the husband ' not based on lies to the French court, but due to his and his attorney's alleged fraudulent representations to state and federal courts in New York. Specifically, he sought U.S. And New York State recognition of the French divorce on the basis of comity by claiming that the French court properly exercised jurisdiction to grant the divorce because the parties resided in France, in that same disputed apartment.

The district court was not moved to reconsider for three reasons. The first was that the ex-husband had argued in his motion papers in opposition to the motion for default that the court lacked personal jurisdiction over him, yet the plaintiff did not submit a reply brief rebutting his arguments, although she could have done so at that time. Second, in her original allegations, the plaintiff cited only the claim for fraud on the French court. She could not now raise new claims of fraud on U.S. courts. And, finally, according to the complaint that any fraud committed was committed outside the United States. The district court explained: “To French courts, defendants allegedly argued that the Paris apartment was not the parties' marital residence, so that plaintiff would not receive the personal property contained within it under her prenuptial agreement. To New York courts, by contrast, defendants allegedly argued that the apartment was the parties' marital residence, so that New York courts would grant comity to the French divorce judgment. Plaintiff's position is that the Paris apartment was, in fact, her and her ex-husband's marital residence. Under her theory, therefore, defendants lied to French courts, but told the truth to New York courts. Thus, assuming arguendo that plaintiff's allegations are true, defendants' statements to New York courts were not false or misleading. Moreover, for that reason, it makes sense that plaintiff pleaded her cause of action for fraud based solely on defendants' statements in France.”

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Man May Challenge Marriage Validity Despite Joint Tax Filings

A trial court correctly declined to estop a husband from attempting to have his marriage declared' null and void simply because he had held himself out to be married when filing his tax returns. Oswald v. Oswald , 2013 N.Y. App. Div. LEXIS 2745; 2013 NY Slip Op 2811 (3d Dept. 4/25/13) (Peters, P.J., Rose, Stein and Egan Jr., JJ.).

The parties were married in 2005 in a ceremony performed by a minister of the Universal Life Church (ULC). Five years later, the husband sought a declaration that the marriage was void for having been officiated over by a person not authorized to perform marriages under New York's Domestic Relations Law (DRL).

The defendant wife denied the marriage was invalid and counterclaimed for divorce. She argued, inter alia, that the plaintiff should be estopped from arguing that the marriage was void because he had stated on the couple's joint tax returns that they were husband and wife. She pointed to the decisions in Mahoney-Buntzman v. Buntzman , 12 NY3d 415 (2009) and Naghavi v. New York Life Ins. Co. , 260 AD2d 252 (1999) for the proposition that a party to a litigation is estopped from asserting a position contrary to that taken on his or her tax return.

The trial court determined, and the appellate court agreed, that although this maxim is true under most circumstances, an invalid marriage cannot be retroactively validated by estoppel or by the parties' own conduct. Therefore, the husband was not estopped from challenging the validity of his marriage. However, the Third Department found that the trial court's marriage invalidity declaration was based on the outdated case law found in Ranieri v. Ranieri , 146 AD2d 34 (1989), the only appellate decision in New York addressing the question of whether a minister of the ULC has authority in the state to perform marriages.

“Ranieri was decided a quarter century ago,” the Third Department observed, “and we simply cannot presume that the belief system, structure and inner workings of the ULC have remained static since that time. With the issue having resurfaced, we find it appropriate to address [the legitimacy of the ULC as a church in accordance with New York law] anew.” As the record on this issue had not been developed at trial, the court reversed and remanded for further proceedings.

'

Continued Employment Difficulties Do Not Prove Changed Circumstances

Supreme Court erred in ordering a man to pay his ex-wife maintenance for 20 months beyond the originally agreed-upon term because, although she remained unemployed, this possibility had been specifically acknowledged in the original agreement. McKay v. McKay , 2013 N.Y. App. Div. LEXIS 2739; 2013 NY Slip Op 2806 (3d Dept. 4/25/13) (Mercure, J.P., Spain, McCarthy and
Egan Jr., JJ.).

The husband appealed from an order directing him to pay maintenance to his ex-wife beyond the term originally set out in the parties' stipulation of settlement, which was 3.5 years. The stipulation acknowledged that the wife needed maintenance because she was, at the time of divorce, unemployed and unemployable due to mental and physical disabilities and her plans to become a full-time student. Because the wife remained unemployed at the end of 3.5 years, she later moved for an extension of the maintenance term, which Supreme Court, Albany County, granted by modifying the stipulation of settlement. The husband appealed.

After noting that maintenance awards based on stipulations of settlement incorporated but not merged into the judgment of divorce may be altered by the court only if an unanticipated and unreasonable change in circumstances has taken place resulting in extreme financial hardship to one of the parties, and that the party seeking the alteration bears the burden of demonstrating such change, the appeals court concluded that the wife had fallen short on this score. There was no real unanticipated changed of circumstances here, stated the Third Department,' because “the parties expressly recognized the wife's employment status and prospects, as well as the existence and nature of her disabilities, her plans to apply for disability benefits and her anticipated status as a full-time student, at the time they entered into the stipulation agreement.” In addition, because the wife's evidence of financial hardship was not reliable, the court concluded she had not proven that she would suffer such hardship without an extension of maintenance. Thus, the court reversed the order requiring the husband to pay maintenance for an additional 20 months.

'

BIA Says Marriage Not Entered Into in Good Faith: No Federal Court Review

The U.S. Court of Appeals for the Second Circuit has dismissed a woman's petition for review of a decision rendered by the Board of Immigration Appeals (BIA) after finding that it did not have jurisdiction to review this BIA decision concerning the basis of the would-be permanent resident's marriage. Montague v. Holder, 2013 U.S.Appl. LEXIS 8285 (2d Dept. 4/24/13) (Kearse, Walker and Chin, Circuit Judges).

The petitioner, a Jamaican national, married an American man and petitioned for lawful permanent resident status in the United States in 1987. According to the Immigration
and Nationality Act (INA), an alien married to an American citizen who petitions for lawful permanent resident' immigration status within two years of the marriage will be granted it only conditionally. 8 U.S.C. ” 1151(b)(2)(A)(i), 1154(a)(1)(A), 1186a(a)(1)(2006). In order to be eligible to become a full permanent resident, the parties must jointly file a petition to remove the condition within two years of the alien spouse's grant of conditional permanent resident status. 8 U.S.C. ” 1186a(c)(1)(A), (c)(2)(A)(i).

The petitioner sought to be excused from the requirement of filing the joint petition with her spouse. An alien spouse may be so excused by the Attorney General if, at his discretion, he determines that the conditional permanent resident's “qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to [file a timely joint petition].” 8 U.S.C. ' 1186a(c)(4)(B).'

The petitioner presented the immigration judge (IJ) with evidence that she had been forced to leave her husband due to abuse and that she lacked documentary evidence of her marriage because of the circumstances under which she left the marital home and the length of time since the marriage had ended. The IJ found discrepancies in her story, however, and on Dec. 1, 2009, concluded that she had failed to prove she entered into the marriage in good faith. The petitioner appealed this decision to the Board of Immigration Appeals (BIA), which affirmed.

The petitioner next appealed to Second Circuit appellate court, claiming it had authority to review the decision because her waiver application was filed with the federal authorities before the 2005 enactment of the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, the statutory provision that bars judicial review of discretionary decisions made by the Attorney General. The Second Circuit rejected this argument, however, because that provision was introduced in 1996, in the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009. See 8 U.S.C. ' 1252(a)(2)(B)(ii)(2000).

The U.S. Circuit Courts can, however, review constitutional questions or questions of law. 8 U.S.C. ' 1252(a)(2)(B). But the Second Circuit found that the petitioner's challenges in this case were to factual determinations made by the IJ and adopted by the BIA. The court explained: “Although petitioner attempts to frame her challenge as a question of law by stating that the agency 'totally overlooked and/or seriously mischaracterized' certain items of evidence and statements of purported witnesses, ' the decision of the IJ and the BIA belie this argument.” CF. Mendez v. Holder , 566 F.3d 316, 322 (2d Cir. 2009) ( per curiam ) (finding error of law where the agency 'totally overlooked' and 'seriously mischaracterized' certain factors important to the determination of petitioner's claim).” Because the appeal did not raise any questions of law or constitutional claims, the court concluded that it lacked jurisdiction to review the decisions of the immigration authorities.

Reconsideration Not Warranted When Based on New Allegations

The U.S. District Court for the Southern District of New York has declined to reconsider its 2012 dismissal of a woman's complaint alleging her ex-husband committed fraud when obtaining their French divorce, after concluding that the remedy of reconsideration is not available based on newly presented evidence; reconsideration is appropriate only when the court has overlooked or disregarded statutory or case law that was before it when it made its original decision. De Ganay v. De Ganay, 2013 U.S. Dist. LEXIS 60889 (S.D.N.Y. 4/29/13).

The plaintiff ex-wife brought suit in the U.S. District Court against her ex-husband, whom she claimed lied about a Paris apartment he claimed as separate property to the French court that issued their divorce. When he did not answer her fraud complaint, the plaintiff moved for default judgment, which the court denied, finding that it lacked jurisdiction to hear the case.

On motion for reconsideration, the plaintiff claimed the district court was authorized to hear her case because it had personal jurisdiction over the husband ' not based on lies to the French court, but due to his and his attorney's alleged fraudulent representations to state and federal courts in New York. Specifically, he sought U.S. And New York State recognition of the French divorce on the basis of comity by claiming that the French court properly exercised jurisdiction to grant the divorce because the parties resided in France, in that same disputed apartment.

The district court was not moved to reconsider for three reasons. The first was that the ex-husband had argued in his motion papers in opposition to the motion for default that the court lacked personal jurisdiction over him, yet the plaintiff did not submit a reply brief rebutting his arguments, although she could have done so at that time. Second, in her original allegations, the plaintiff cited only the claim for fraud on the French court. She could not now raise new claims of fraud on U.S. courts. And, finally, according to the complaint that any fraud committed was committed outside the United States. The district court explained: “To French courts, defendants allegedly argued that the Paris apartment was not the parties' marital residence, so that plaintiff would not receive the personal property contained within it under her prenuptial agreement. To New York courts, by contrast, defendants allegedly argued that the apartment was the parties' marital residence, so that New York courts would grant comity to the French divorce judgment. Plaintiff's position is that the Paris apartment was, in fact, her and her ex-husband's marital residence. Under her theory, therefore, defendants lied to French courts, but told the truth to New York courts. Thus, assuming arguendo that plaintiff's allegations are true, defendants' statements to New York courts were not false or misleading. Moreover, for that reason, it makes sense that plaintiff pleaded her cause of action for fraud based solely on defendants' statements in France.”

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