Uzoma v. Okereke, 14–P–1184.
Decision Date | 11 September 2015 |
Docket Number | No. 14–P–1184.,14–P–1184. |
Citation | 88 Mass.App.Ct. 330,37 N.E.3d 654 |
Parties | Mary–Pat UZOMA v. Augustine I. OKEREKE. |
Court | Appeals Court of Massachusetts |
Harold N. Robertson, Boston, for the husband.
Thomas Arthur Hensley, Taunton, for the wife.
Present: GRAINGER, RUBIN, & BLAKE, JJ.
The plaintiff filed a complaint for annulment, and a motion for service of the complaint by publication, in the Probate and Family Court on July 13, 2010. On that same day a judge of that court allowed the motion for service by publication, endorsed the motion by noting “service is waived ” (emphasis in original), and entered a judgment of annulment. There is no indication in the record of the basis upon which the judge waived the requirement of service.
The defendant learned of the annulment in 2012. The next year, he sought relief in the Probate and Family Court, ultimately filing an amended motion under Mass.R.Dom.Rel.P. 60(b)(4) to vacate the judgment. The first judge having retired, a second judge of that court denied that motion.
Service in this case was inadequate to provide the notice of the action required by principles of due process. See, e.g.,
Wang v. Niakaros, 67 Mass.App.Ct. 166, 172, 852 N.E.2d 699 (2006) ( ). Consequently, the judgment is void. See, e.g., id. at 169, 852 N.E.2d 699 (). The main thrust of the plaintiff's argument is that because of the delay between the defendant's receiving actual notice of the judgment and his actions seeking to vacate that judgment, he waived his entitlement to vacatur under rule 60(b)(4).
The underlying judgment in this case is void. There is no time limit with respect to rule 60(b)(4) motions based on void judgments. See, e.g., Bowers v. Board of Appeals of Marshfield, 16 Mass.App.Ct. 29, 31, 448 N.E.2d 1293 (1983) (). The question is not one of waiver by the defendant of a right, but of a lack of authority on the part of the court to have issued the underlying judgment. Because the judgment is void, no action by the...
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