Khallad v. Blanc

• Decision Date: 15 June 2012
• Citation: 96 A.D.3d 1574,947 N.Y.S.2d 859,2012 N.Y. Slip Op. 04869
• Parties: Hicham KHALLAD, Plaintiff–Appellant, v. Shelena BLANC, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1574
947 N.Y.S.2d 859
2012 N.Y. Slip Op. 04869

Hicham KHALLAD, Plaintiff–Appellant,
v.
Shelena BLANC, Defendant–Respondent.

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

June 15, 2012.

[947 N.Y.S.2d 860]

Santosh K. Pawar, Pittsford, for Plaintiff–Appellant.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

[96 A.D.3d 1575]Plaintiff commenced this action seeking, inter alia, a declaration that a judgment of divorce obtained by defendant in Florida is invalid. In 2002, defendant traveled to Morocco and conceived a child with plaintiff, a Moroccan native. The parties' child was born in Florida in July 2003 and, in March 2005, plaintiff and defendant were married in Florida. Thereafter, the parties resided together in Florida for one or two months before plaintiff moved to New York City. In January 2006, defendant filed a petition for dissolution of marriage in the Circuit Court for the Ninth Judicial Circuit, in and for Orange County, Florida (hereafter, Florida court), asserting that the marriage was “irretrievably broken” and that she and plaintiff had no children in common. Defendant submitted an “affidavit of diligent search and inquiry,” in which she averred that plaintiff's current residence was unknown to her and that she had made a diligent search and inquiry to discover it. Defendant then served the petition upon plaintiff by publication in a local Florida newspaper. Plaintiff did not respond to the petition or appear in court, and a default judgment was entered against him. In April 2006, the Florida court granted a final judgment of dissolution of marriage (hereafter, divorce judgment).

According to plaintiff, he first learned of the divorce judgment in or about June 2010, when deportation proceedings were commenced against him. On July 29, 2010, plaintiff moved to set aside the default judgment in the Florida court, asserting that he failed to appear in the divorce action because he did not receive a summons or petition. Plaintiff further alleged that defendant fraudulently obtained the divorce judgment inasmuch as she falsely stated that she did not know where plaintiff lived and that the parties did not have any children in common. After a hearing, the Florida court denied plaintiff's motion on the ground that it had been filed more than one year after entry of the divorce judgment ( seeFla Rules Civ. Pro rule 1.540[b] ).

Plaintiff thereafter commenced this action seeking a declaration that the divorce judgment is “invalid and of no force and effect” because it was fraudulently obtained. By the judgment on appeal, Supreme Court, inter alia, determined that the divorce judgment should be granted full faith and credit, and thus declared that the judgment was valid. We affirm.

[947 N.Y.S.2d 861]

“A divorce judgment of a sister state made in an action in which both parties were subject to the personal jurisdiction of the court is entitled to full faith and credit by the courts of this [96 A.D.3d 1576]state” (Matter of Sannuto v. Palma–Sannuto, 32 A.D.3d 443, 443, 820 N.Y.S.2d 112;see Erhart v. Erhart, 226 A.D.2d 26, 27, 649 N.Y.S.2d 302). Absent a jurisdictional challenge, a judgment entered upon a party's default is entitled to full faith and credit ( see Steven M. Garber & Assoc. v. Zuber, 87 A.D.3d 1295, 1296, 929 N.Y.S.2d 913,lv. denied18 N.Y.3d 802, 2011 WL 6223125;Vertex Std. USA, Inc. v. Reichert, 16 A.D.3d 1163, 1163, 791 N.Y.S.2d 892;GNOC Corp. v. Cappelletti, 208 A.D.2d 498, 616 N.Y.S.2d 1018). “The application of full faith and credit to the judgment of a sister State is the functional equivalent of interstate res judicata” ( DiCaprio v. DiCaprio, 219 A.D.2d 819, 819, 631 N.Y.S.2d 975,appeal dismissed87 N.Y.2d 967, 642 N.Y.S.2d 195, 664 N.E.2d 1258,lv. denied88 N.Y.2d 802, 645 N.Y.S.2d 445, 668 N.E.2d 416,rearg. denied89 N.Y.2d 861, 653 N.Y.S.2d 283, 675 N.E.2d 1236;seeSiegel, N.Y. Prac. § 471, at 797 [4th ed.] ). “As a matter of full faith and credit, review by the courts of this State is limited to determining whether the rendering court had jurisdiction, an inquiry which includes due process considerations ... Thus, inquiry into the merits of the underlying dispute is foreclosed; the facts have bearing only in the limited context of our jurisdictional review” ( Fiore v. Oakwood Plaza Shopping Ctr., 78 N.Y.2d 572, 577, 578 N.Y.S.2d 115, 585 N.E.2d 364,rearg. denied79 N.Y.2d 916, 581...