Augustin v. Augustin

• Decision Date: 28 December 2010
• Citation: 79 A.D.3d 651,913 N.Y.S.2d 207
• Parties: Edeline AUGUSTIN, Plaintiff-Appellant, v. Nerva AUGUSTIN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

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79 A.D.3d 651

Edeline AUGUSTIN, Plaintiff-Appellant,
v.
Nerva AUGUSTIN, Defendant-Respondent.

Supreme Court, Appellate Division, First Department, New York.

Dec. 28, 2010.

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Warren S. Hecht, Forest Hills, for appellant.

Law Offices of Paul S. Goldstein, Jamaica (Glenn S. Koopersmith of counsel), for respondent.

NARDELLI, J.P., McGUIRE, ACOSTA, FREEDMAN, ROMÁN, JJ.

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Order, Supreme Court, New York County (Laura E. Drager, J.), entered on or about April 13, 2009, which, to the extent appealed from, as limited by the briefs, denied plaintiff's motion to vacate a judgment of divorce entered by the Clerk of that court in 1985 and for an award of counsel and expert fees, modified, on the law and the facts, to remand the matter for an evidentiary hearing with respect to so much of plaintiff's motion as seeks an order vacating the 1985 judgment of divorce, and otherwise affirmed, without costs.

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The IAS court denied plaintiff wife's motion to vacate the 1985 divorce judgment on the ground of fraud. A motion to vacate a judgment upon the ground of fraud pursuant to CPLR 5015(a)(3) must be made within a reasonable time ( see Weimer v. Weimer, 281 A.D.2d 989, 722 N.Y.S.2d 328 [2001] [4 year delay unreasonable]; Richardson v. Richardson, 309 A.D.2d 795, 765 N.Y.S.2d 388 [2003] [12 year delay unreasonable]; Sieger v. Sieger, 51 A.D.3d 1004, 1006, 859 N.Y.S.2d 240 [2008], lv. denied 14 N.Y.3d 711, 2010 WL 1854440 [2010] ) [7 year delay unreasonable]. The IAS court found that the wife was aware of the defendant husband's alleged misconduct by July 1990, and that she waited until 2008 to move to vacate the

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judgment. It determined that the wife's 18-year delay was unreasonable.

Although the wife never argued below that the 1985 judgment should be vacated for lack of jurisdiction pursuant to CPLR 5015(a)(4), contrary to the husband's contention, this Court may review the argument since it is a legal argument which appears upon the face of the record and could not have been avoided if brought to the husband's attention at the proper juncture ( see Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209, 641 N.Y.S.2d 252 [1996], lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ). The wife's argument, however, lacks merit. Although a motion to vacate a judgment for lack of jurisdiction may be made "at any time" ( Caba v. Rai, 63 A.D.3d 578, 580, 882 N.Y.S.2d 56 [2009] ), such a motion should be denied if the movant acted as if the judgment were in effect before moving to vacate it ( Calderock Joint Ventures, L.P. v. Mitiku, 45 A.D.3d 452, 453, 848 N.Y.S.2d 36 [2007] ). Here, the IAS court determined that because the wife did not deny that she submitted the 1985 divorce judgment to the Queens County Family Court in 1992 to obtain support for herself and her children, she waived any objection to the court's jurisdiction over her ( see id.).

Given that the wife failed to submit a complete copy of her statement of net worth and her motion to vacate lacked merit, the IAS court providently exercised its discretion in denying the wife's motion for counsel fees ( see Domestic Relations Law § 237(a); see generally DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ).

The IAS court also providently exercised its discretion in denying the wife's motion for expert fees, namely $1,000 for a handwriting expert's appearance at trial. Because the wife's motion to vacate the 1985 divorce judgment was denied, the handwriting expert's appearance was not necessary.

However, inasmuch as each party contends that the other surreptitiously procured the 1985 judgment by some form of deceit, and given the policy implications of a fraud being perpetrated on the court, we exercise our independent discretion

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and remand for an evidentiary hearing. If it is found that it was the wife who wrongfully obtained the divorce, her motion to vacate the judgment should be denied. If, however, it was the husband who was fraudulent, then Supreme Court can reach the issue of whether the wife's delay in seeking to vacate the judgment was reasonable, or whether she waived any challenges to the validity of the judgment by relying on it in seeking maintenance and support in Family Court in 1992.

We do not find it necessary at this juncture to draw inferences from an incomplete and contradictory record, particularly in light of our remand for a hearing. Indeed, the need for an evidentiary hearing is manifest by the IAS's court characterization of the wife's lack of "credibility and bona fides" and the concurrence's assertion that "there is a substantial basis for believing that the husband fraudulently obtained the divorce" (emphasis added).

All concur except NARDELLI, J.P. and McGUIRE, J. who concur in a separate memorandum by McGUIRE, J. as follows:

McGUIRE, J. (concurring).

I write separately because the majority's discussion of the only significant issue in this remarkable case is inadequate and flawed.

A judgment of divorce in an action ostensibly commenced by the wife was entered in Supreme Court, New York County,

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on July 1, 1985. Although no definitive conclusion can or should be reached on this record, there is a substantial basis for believing that the husband fraudulently obtained the divorce without the wife's knowledge pursuant to a scheme he devised and executed. Indeed, Supreme Court acknowledged that when it wrote of the "apparent improprieties engaged in by the [husband] to obtain the 1985 divorce judgment." Nonetheless, Supreme Court denied the wife's September 2008 motion seeking, inter alia, to vacate the 1985 judgment. Supreme Court held that the wife could not challenge the 1985 judgment because she concededly knew of it by mid-1990 at the latest and did not take affirmative steps to challenge it in the ensuing 18 years. According to Supreme Court, the "apparent improprieties" of the husband "do not excuse the [wife's] 18-year inaction." It is not clear whether Supreme Court's ruling was based on waiver or estoppel. In any event, Supreme Court effectively precluded the wife from seeking maintenance, equitable distribution of marital assets and all other benefits a spouse otherwise is entitled to seek on the dissolution of a marriage.

Supreme Court should have held a hearing with respect to so much of the wife's motion as seeks an order vacating the 1985 divorce judgment. Both parties to this action have submitted sworn affidavits to the effect that each did not know anything

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about the 1985 action before the judgment was entered. Certainly one of them is lying about that (possibly, but implausibly, both are lying). In the procedural posture of this case, we should assume that the husband fraudulently obtained the judgment. As discussed below, only the mere inaction of the wife supports Supreme Court's ruling. The wife's inaction cannot justify a ruling by Supreme Court that effectively validates the fraudulent judgment, penalizes the wife, perhaps substantially, and not only disregards the apparent wrongdoing of the husband but permits him to profit, perhaps substantially, from that wrongdoing.

The parties were married in Haiti in January of 1973 and have three adult children from the marriage. In 1983 a decree of divorce was issued in Haiti in an action commenced by the husband. Although the parties dispute the validity of that decree, obtained on the wife's default, Supreme Court did not rule on the issue and we need not and should not address it.

In January of 1985, a divorce action was commenced in Supreme County, New York County, purportedly by the wife, represented by Jean H. Charles, Esq. The complaint, ostensibly verified by the wife, alleges, inter alia, abandonment by the husband and that the parties had been living separate and apart for more than two years. An affidavit purportedly executed by the wife that same month also so asserts, and alleges as well that the husband had admitted service of the summons with notice, was not seeking equitable distribution and was waiving his right to answer and to service of any additional papers. Mr. Charles notarized both sworn statements. In an affidavit sworn to on January 12, 1985, the husband (or an imposter) admitted service of the summons with notice, stated he was not seeking equitable distribution and was waiving his right to answer and to service of any additional papers other than the judgment of divorce. By an "Affirmation of Regularity," dated April 29, 1985, Mr. Charles requested that the action be placed on the undefended calendar for trial. The judgment of divorce, entered on July 1, 1985 on motion of Mr. Charles, awarded custody of the children to the wife, with Family Court exercising concurrent jurisdiction over issues of child custody and child support. Neither the complaint, the affidavit ostensibly

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submitted by the wife nor the judgment of divorce makes any mention of a request by her for maintenance or child support.

Almost 23 years later, in April 2008, the wife commenced a divorce action in Supreme Court, Queens County. In her amended verified complaint, the wife swore that the husband had abandoned her in 2002 by leaving the marital residence and

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promising never to return. She swore as well that she had supported the husband through medical school and that shortly after he graduated from medical school the husband had left the marital home, periodically returning only to finally leave in 2002. In addition, she asserted that there was no judgment of divorce in favor of either party and against the other in any court of competent jurisdiction. The wife sought, inter alia, an "evaluation of [the husband's] medical license and practice," equitable distribution of marital assets and exclusive occupancy of the marital residence.

In his answer, the husband set forth the 1985 divorce judgment...