Tamimi v. Tamimi

• Decision Date: 24 January 1972
• Citation: 38 A.D.2d 197,328 N.Y.S.2d 477
• Parties: Audrey TAMIMI, Appellant, v. Adnan TAMIMI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 477

328 N.Y.S.2d 477

38 A.D.2d 197

Audrey TAMIMI, Appellant, v. Adnan TAMIMI, Respondent.

Supreme Court, Appellate Division, Second Department.

Jan. 24, 1972.

Peter W. Quinn, New York City, for appellant.

Before LATHAM, Acting P.J., and SHAPIRO, GULOTTA, BRENNAN and BENJAMIN, JJ.

SHAPIRO, Justice.

In this action for a separation, for support and maintenance of the plaintiff and the children of the marriage, and for a declaratory judgment that a divorce obtained by the defendant in Thailand is null and void, the Special Term, after trial, dismissed the plaintiff's complaint, As a matter of law.

A statement of the facts, which are undisputed since the defendant, although represented by counsel at the trial, did not testify, is

necessary to an understanding and determination of the question of law involved.

THE FACTS

The plaintiff wife, a citizen of Great Britain, and the defendant, an Iraqi national employed by the United Nations, were married in New York City in 1952. They have two children. In the course of his employment, the defendant took his family to Thailand in November of 1963. They leased their New Rochelle home before leaving.

After a few weeks in Thailand, the children became ill and the parents were advised by a physician to take them out of that climate. The defendant thereupon induced the plaintiff to take the children to visit her parents in England--she did that in May of 1964--and he also told her he would join her some months later. In April of 1964, after the plaintiff had agreed to remove the children from Thailand, the husband instituted an action against her for divorce in the Bangkok Civil Court. The complaint alleged acts of misconduct by the plaintiff tantamount to cruel and inhuman behavior. The plaintiff was personally served with process in the Thailand action but she interposed no answer to the complaint.

Shortly thereafter, both her husband and his Thai attorney assured her that if she continued with the plan to take the children back to England and thereafter to America, the divorce action would be dropped. Despite that promise, and after she had left Thailand with the children, her husband proceeded with the action and obtained a decree of divorce by default on August 6, 1964, a copy of which was received by her through the mails. It is this decree which the plaintiff here seeks to have declared void.

DETERMINATION OF THE SPECIAL TERM

In dismissing the plaintiff's complaint, Judge Walsh, at a Special Term, held that the Bangkok court had acquired jurisdiction over the person of the plaintiff and that the acts complained of had occurred within that court's jurisdiction. Thus, said the court, as a matter of comity, the judgment should be recognized as valid in New York, since Rosenstiel v. Rosenstiel (16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709) had erased any theretofore existing distinctions between the constitutional mandate of full faith and credit and the principle of comity.

With respect to the wife's contention that her husband's fraudulent misrepresentations induced her not to defend the divorce action in Thailand, Judge Walsh (citing Lynde v. Lynde, 162 N.Y. 405, 56 N.E. 979) held that, since the foreign court had acquired jurisdiction of the person of the plaintiff, it retained jurisdiction until the final decree was rendered and that therefore the decree must be regarded as valid and binding until set aside by the Thailand court. Judge Walsh also

held that, while the purported fraud may have induced the Thailand court to commit error, the resulting judgment is susceptible to attack for such [38 A.D.2d 199] fraud in Thailand and not in New York (citing Hunt v. Hunt, 72 N.Y. 217). ¹

THE LAW

I believe that the determination of the Special Term should be reversed and a new trial granted. The issue is not whether the Thai court had jurisdiction of the parties but whether the plaintiff was denied her day in court by the misrepresentation of her husband that he was not going to proceed with the action and whether that claim of fraud is litigable in this State.

In United States v. Throckmorton, 98 U.S. 61, 65, 25 L.Ed. 93 the court said:

'There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy; namely, Interest rei publicae, ut sit finis litium, and Nemo debet bis vexari pro una et eadam causa.'

But it then added (pp. 65--66, 25 L.Ed. 93):

'But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was in fact no adversary trial or decision of the issue in this case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side,--These, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a 'In all these cases, and many others which have been examined, relief has been granted, on the ground that, by some fraud practised directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court' (emphasis supplied).

new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. See Wells, Res Adjudicata, sect. 499; Pearce v. Olney, 20 Conn. 544; Wierich v. De Zoya, 7 Ill. 385; Kent v. Richards, 3 Md.Ch. 392; Smith v. Lowry, 1 Johns. (N.Y.) Ch. 320; De. Louis et al. v. Meek et al., 2 Iowa, 55.

In consonance with the rule there laid down, the courts prior and subsequent thereto have clearly held:

'It is a rule well settled, that every judgment may be impeached for fraud, and this applies as well to judgments of our own State, as to those of other States or foreign judgments; but what will constitute faud sufficient to vitiate a judgment, and who can make the objection, and under what circumstances it can be interposed, are material questions.

'The rule is that there must be facts which prove it to be against conscience to execute the judgment, and which the injured party could not make available in a court of law, or which he was prevented from presenting by fraud or accident, unmixed with any fraud or negligence in himself or his agents' (Kinnier v. Kinnier, 45 N.Y. 535, 542--543).

In Marine Ins. Co. of Alexandria v. Hodgson, 11 U.S. 332, 336, 7 Cranch 332, 336, 3 L.Ed. 362, Chief Justice Marshall said:

'that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a Court of law; or of which he might have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a Court of Chancery.'

In Stilwell v. Carpenter, (162 N.Y. 639, 2 Abb.N.C. 238, 263--264) the court said:

'The question of fraud, which is open to examination in such case, is as to something which intervened in the proceedings by which the judgment was obtained (Sample v. Barnes (55 U.S. 70), 14 How.U.S. 70 (14 L.Ed. 330)), and it must have occurred in the very concoction or procuring of the judgment, and not have been known to the opposite party at the time, and for not knowing which, he is not chargeable with neglect or inattention (Patch v. Ward, L.R., 3 Chy.App. 203). The fraud must consist in something of which the complaining party could not have availed himself in the court giving 'There is a Dictum of Lord Loughborough, in Mitchell v. Harris (2 Ves.Jr., 129), which expresses what is doubtless the law, that a bill in equity showing that a judgment at law was obtained against conscience by concealment, would open it to relief in a court of equity (See Medcalf v. Ives, 1 Atk. 63; Lankton v. Scott, Kirby, 358; Williams v. Lee, 3 Atk. 224; Le Guen v. Gouverneur, 1 Johns. Cases, 456), with this qualification or explanation, however--where the fact withheld was essential to the determination of the suit (Hull v. Blake, 13 Mass. 153).'

the judgment, or of which he was prevented from availing himself there by fraud (Mar. Ins. Co. v. Hodgson (111 U.S. 332), 7 Cranch, 333 (3 L.Ed. 362); Lansing v. Eddy, J.C.R. 49; Duncan v. Lyon, 3 J.C.R. 356), which rule may have the reasonable extension, that it must also be something of which he could not have availed himself, to have restrained the proceedings in the court in which the judgment or decree was obtained, by bringing suit, in a court having power to temporarily enjoin them and to so grant a relief as to make it available in those proceedings (Lansing v. Eddy, Supra).

In Stevens v. Central Nat. Bank of Boston (144 N.Y. 50, 62, 39 N.E. 68, 72) the court noted:

'The rule is well settled that courts will set aside as a nullity a judgment, decree, or award obtained by fraud. Hackley v. Draper, 60 N.Y. 88; State of Michigan v. Phoenix Bank, 33 N.Y. 8; Dobson v. Pearce, 12 N.Y. 156; Wright v. Miller, 8 N.Y. 9; Whittlesey v. Delaney, 73 N.Y. 571; Tiernan v. Wilson, 6 Johns.Ch. 411; Campbell v. Railroad Co., 1 Woods, 368.'

In Davis v. Cornue (151 N.Y. 172, 179, 45 N.E. 449, 451) the court held:

'that a court of one state may, where it has jurisdiction of the parties, determine the question whether a judgment between them, rendered in another state, was obtained by fraud, and, if so, may enjoin the enforcement of it.'

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