ALICE R. GOLDFINGER, Plaintiff,
DAVID A. DUBINSKY, Defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
David A. Dubinsky has moved for summary judgment on Plaintiff
Alice R. Goldfinger's claims against him for fraudulent
misrepresentation, fraudulent concealment, fraud on the
court, and punitive damages. Oral argument was held on March
on the entire record, Defendant's motion for summary
judgment is denied.
Alice R. Goldfinger and Defendant David A. Dubinsky were
previously married and are the parents of two children. (Def
S.M.F. Ex. E at 1.) The parties were divorced on June 16,
2009, docket number PORDC-FM-08-698. (Def. Supp. S.M.F.
¶ 1; Pl. Opp. S.M.F. ¶ 1.) Pursuant to the divorce
judgment, Defendant was required to pay Plaintiff $186.00 per
week in child support based upon his imputed income. (Def.
S.M.F. Ex. A at 9.) Because Defendant claimed he was not
currently employed at the time of the divorce proceedings,
Defendant's child support obligation was suspended until
July 2011. (Id. at 10.) The divorce judgment
required the parties exchange copies of their tax returns or
affidavits concerning their current income each year.
(Id.) Also because Defendant claimed he was not
currently employed, the divorce judgment also ordered
Plaintiff to pay spousal support to Defendant in the amount
of $500.00 per month until July 2011. (Id. at 14.)
the divorce judgment, the parties have been involved in
numerous post-judgment proceedings regarding child support
and other issues. (Def. Supp. S.M.F. ¶ 4; Pl. Opp.
S.M.F. ¶ 4.)
most recent post-judgment proceeding was a hearing on a
motion by the Maine Department of Health and Human Services
("DHHS") to modify the child support order held on
October 30, 2014. (Id. ¶ 8.) During the
hearing, Defendant admitted under oath he had fabricated
financial information related to calculation of child support
from 2009 to 2013. (Id. ¶ 10.) Defendant
admitted to falsifying tax returns and W2 forms to
misrepresent and conceal his actual employment and income.
(Id. ¶¶ 11-15.)
family law magistrate issued a post-judgment order on
December 3, 2014. (Def. S.M.F. Ex. E at 3.) Based on
Defendant's admission that he had fabricated financial
information, the family law magistrate found Defendant's
testimony not credible. (Id.) The family law
magistrate determined that Defendant was under-employed and
imputed Defendant an income of $153, 180.00 per year for the
purpose of calculating child support. (Id.) The
family law magistrate also denied Defendant's request for
a downward deviation in child support because of his
admission. (Id.) Rather, the family law magistrate
found that an upward deviation was appropriate because of
Defendant's failure to properly disclose his actual
income, among other reasons. (Id.)
filed a complaint against Defendant on February 26, 2015.
After an extension of time, Defendant filed an answer and
counterclaim on April 10, 2015. Plaintiffs motion for leave
to filed an amended complaint was granted on May 26, 2015.
Defendant filed an amended answer on June 11, 2015.
filed his motion for summary judgment along with a supporting
statement of material facts and exhibits on September 22,
2015. After an extension of time, Plaintiff filed an
opposition to Defendant's motion along with opposing and
additional statements of material facts and exhibits on
October 29, 2015. After multiple extensions of time,
Defendant's filed a reply to Plaintiffs opposition on
February 19, 2016.
asserts he is entitled to summary judgment on three grounds.
First, he is entitled to summary judgment because this court
lacks subject matter jurisdiction over Plaintiffs claims.
(Def. Mot. Summ. J. 6.) Second, he is entitled to summary
judgment on his affirmative defense of res judicata.
( Id. at 9); see M.R. Civ. P. 8(c). Lastly, he
is entitled to summary judgment because Plaintiffs complaint
fails to state any independent tort claims not precluded by
res judicata. ( Id. at 11.)
Standard of Review
judgment is appropriate if, based on the parties'
statements of material fact and the cited record, there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. M.R. Civ. P. 56(c);
Dyer v. Dep't of Transp.,2008 ME 106, ¶
14, 951 A.2d 821. "A material fact is one that can
affect the outcome of the case. A genuine issue of material
fact exists when the [Tact finder] must choose between
competing versions of the truth." Dyer, 2008 ME
106, ¶ 14, 951 A.2d 821 (internal citation and quotation
marks omitted). When deciding a motion for summary judgment,
the court reviews the evidence in the light most favorable to
the non-moving party. Id. If the moving party's
motion for summary judgment is properly supported, the burden
shifts to the non-moving party to respond with specific facts
indicating a genuine issue for trial in order to avoid
summary judgment. M.R. Civ. P. 56(e). "To
withstand a motion for summary judgment, the plaintiff must
establish a prima facie case for each element of their ...