of a summons before any complaint was filed. Id. at 628-29.
It is hard to understand why a lawyer would tell such a bare-faced lie, but the facts and Mr. Kemper's demeanor leave no question that his testimony was deliberately false and, on the whole, unworthy of belief. His false exculpatory testimony provides further evidence that Mr. Kemper knew the divorce action to be fraudulent the day he filed it.
But even if New York law gave Mrs. Mongelli the right to divorce her husband because he had been sentenced to jail for more than three years, the Court could not permit a collusive action such as this to be utilized as a vehicle to transport Robert Mongelli's assets to a safe haven where they could not be seized to enforce the contempt order of this Court.
The New York Domestic Relations law was not designed to regulate creditors' rights. One cannot believe that, in enacting the financial protections provided to a spouse with legitimate grounds for divorce, the legislature intended to provide the family of the spouse whose conduct has given grounds for divorce greater protection from creditors than would be accorded to the family of a spouse who has so completely fulfilled his marriage vows that no grounds for divorce existed. There are provisions in both the New York Creditors Rights law and the federal bankruptcy code that attempt to balance the interests of a bankrupt individual's creditors and the family members who depend on the bankrupt for their support. See 12 New York Debtor and Creditor Law § 282; 11 U.S.C. § 522. That is not the purpose of the Divorce Law.
Indeed, both federal and New York courts have recognized that the use of a collusive divorce proceeding to transfer assets between spouses results in a fraudulent conveyance of property that should be set aside. See, e.g., United States ex rel. Hartigan v. Alaska, 661 F. Supp. 727, 730 (N.D. Ill. 1987) (setting aside transfer of assets intended to frustrate collection of judgment by government, the court held that divorce "was certainly never intended to be a vehicle to effect a fraudulent end, or to transmute that which would otherwise be fraudulent into something lawful") (citation omitted); McDonald v. Jarrabet, 188 A.D.2d 1045, 591 N.Y.S.2d 676 (4th Dept. 1992) (asset transfer related to divorce could be set aside if intent to defraud creditors shown); New York v. Goldstein, 170 A.D.2d 789, 565 N.Y.S.2d 892 (3d Dept. 1991) (same).
As has long been recognized, "the power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts . . . ." Ex parte Robinson, 86 U.S. 505, 510, 22 L. Ed. 205 (1873). Our judicial system could not function if litigants were free to evade lawful orders of the Court. The record here clearly establishes that the divorce action instituted by Joann Mongelli on October 1, 1993 was a collusive sham designed to frustrate the Court's ability to enforce the sanctions it imposed to compel Robert Mongelli to comply with its lawful order. It would be intolerable for this Court to permit that action to succeed in any way.
For the foregoing reasons, this Court hereby vacates any and all orders heretofore entered by the Supreme Court of the State of New York relating to the custody and control of the assets of Robert Mongelli and orders Arnold Mazel, Esq. to turn over forthwith to the federal monitor, Nicholas Scopetta, Esq., all of the assets of Robert Mongelli presently in his custody and control. In addition, by July 8, 1994, Mr. Mazel is to provide this Court and Government counsel with an accounting of all funds distributed by him from the Mongelli assets. On receipt of that accounting, the Government shall cause a copy of this opinion to be served on all parties who have received payment out of the Mongelli assets from Mr. Mazel and these parties are to show cause before this Court in Room 443 of the U.S. Courthouse at 10 a.m. on July 22, 1994, why an order should not be entered requiring them to repay to the monitor any funds they received out of the Mongelli assets.
Dated: New York, New York
June 30, 1994
JOHN S. MARTIN, JR.,