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Goldfinger v. Dubinsky

Superior Court of Maine, Cumberland

March 22, 2016

ALICE R. GOLDFINGER, Plaintiff,
v.
DAVID A. DUBINSKY, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          A.M. HORTON, JUSTICE

         Defendant 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 21, 2016.

         Based on the entire record, Defendant's motion for summary judgment is denied.

         I. Background

         Plaintiff 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.)

         Following 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.)

         The 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.)

         The 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.)

         Plaintiff 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.

         Defendant 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.[1]

         II. Analysis

         Defendant 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.)

         A. Standard of Review

         Summary 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 ...


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