97 A.D.2d 403 | N.Y. App. Div. | 1983
Lead Opinion
In a matrimonial action, defendant appeals from an order of the Supreme Court, Suffolk County (Geiler, J.), dated September 28, 1981, which denied his motion to set aside (1) a judgment of divorce entered July 21, 1980, and (2) a stipulation of settlement, dated February 4, 1981, relating, inter alia, to the division of certain property which had been jointly owned. Order reversed, on the law, without costs or disbursements, and matter remitted to Special Term for a hearing in accordance herewith. The pertinent facts and proceedings are set forth in the memorandum of our colleague, Justice Presiding Mangano. In brief summary, defendant husband seeks to vacate a judgment of divorce on the ground that the judgment was fraudulently obtained by the plaintiff wife without opposition from defendant, by lulling him into believing that the parties might reconcile. According to his motion papers, defendant was served in May or June of 1980 with a summons. After receiving the summons, defendant contacted the plaintiff to discuss the divorce action, and the parties decided to attempt a reconciliation. With this in mind, the parties went to Barbados. During their stay in Barbados and, according to defendant, unbeknownst to him, a final judgment of divorce was granted to the wife on July 16, 1980 and entered on July 21, 1980, on the ground of cruel and inhuman treatment. While not setting forth in his 'motion papers the nature of any defenses he may have to the divorce complaint, defendant requested permission to interpose an answer. On February 4, 1981, defendant, still unrepresented by counsel, entered into a “stipulation of settlement” concerning, among other things, the partition and division of certain real property. As detailed at length in Justice Presiding Mangano’s memorandum, defendant alleges that this agreement was the product of overreaching or fraud on the part of plaintiff and her attorney. We concur with our dissenting colleague that a hearing is needed to resolve the question of whether the stipulation of settlement should be set aside as the result of overreaching or fraud on plaintiff’s part. We disagree with the view, however, that defendant is not entitled to a hearing to determine whether the judgment of divorce should be vacated. A recital of precedent is hardly necessary to support the maxim that a default judgment will ordinarily not be vacated absent a showing that there exists a reasonable excuse for the default and that the party in default possesses a meritorious cause of action or defense. This rule applies in matrimonial actions, albeit circumspect consideration is necessary in that context (see Levy v Levy, 67 AD2d 998). However, defendant’s motion to vacate the judgment of divorce is not brought on the ground of excusable default as delineated in CPLR 5015 (subd [a], par 1). Rather, his motion to vacate, being predicated on an accusation that he was lulled into a false sense of security with respect to the divorce action, in essence an allegation of extrinsic fraud (see Tamimi v Tamimi, 38 AD2d 197), is brought pursuant to CPLR 5015 (subd [a], par 3). That paragraph allows a judgment to be vacated upon the ground of “ ‘fraud, misrepresentation, or other misconduct’ ” (see Oppenheimer v Westcott, 47 NY2d 595, 603). In our opinion, a movant seeking relief from a judgment under this paragraph, at least on the ground of extrinsic fraud, need not show that he has a meritorious defense or cause of action. Extrinsic fraud may be defined as a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter (see Tamimi v Tamimi, supra, and authorities cited therein). While it certainly could be said that extrinsic fraud is a ground for excusing a default, the Legislature has distinguished it from other grounds which serve as bases for
Concurrence in Part
concurs in part and dissents in part, with the following memorandum: Plaintiff wife and defendant husband were married on January 21, 1966 in England, and have three children who are presently 14, 8 and 4 years old. In 1980, plaintiff instituted a divorce action against defendant alleging that defendant had engaged in cruel and inhuman conduct toward her. Defendant defaulted in answering, and a judgment of divorce dated July 16, 1980 and entered July 21,1980 was granted on the following ground: “In or about June, 1975, defendant committed physical violence by hitting plaintiff with what is described as ‘karate chop’ and, on countless occasions prior and subsequent to such incident, defendant was always in a rage of temper, petulant in manners used to utter vulgar, abusive and scurrilous language against the plaintiff, which acts were cruel and inhuman and endangered the plaintiff”. The judgment of divorce awarded the plaintiff “the sum of $200 per week for child support and $100 per week for alimony or the total sum of $300 per week until the youngest child is 21 or sooner emancipated and the plaintiff remain [sz'c] unmarried”. The judgment also awarded plaintiff exclusive possession of the marital premises. In January, 1981, plaintiff instituted an action for partition of certain properties which had been owned jointly by the parties prior to their divorce and were now owned by the parties as tenants in common by virtue of the divorce. Defendant, without the benefit of counsel, entered into negotiations with plaintiff and her attorney and, as a result thereof, a stipulation of settlement of the partition action as reached on February 4, 1981. Insofar as is pertinent to the case at bar, the defendant, by the express terms of the stipulation of settlement, agreed to convey his one-half interest in the marital residence to the plaintiff, giving her fee absolute in said property, and also agreed, along with his wife, to convey their respective shares of income-producing property located on Rogers Avenue, Brooklyn, to the three children. Defendant also agreed to manage and administer this property for the benefit of the minor children. In consideration of this partition defendant was relieved of the $100 per week alimony award provided for in the divorce judgment. By order to show cause dated August 12, 1981, the defendant moved to set aside (1) the judgment of divorce dated July 16,1980 and entered July 21,1980 and (2) the stipulation of settlement dated February 4, 1981. In support of his motion, defendant acknowledged that a divorce action was commenced by plaintiff against him in June, 1980. Defendant further alleged that he and his wife took a vacation in July, 1980 to Barbados in order to attempt a reconciliation “and unbeknownst” to him plaintiff had a final judgment of divorce entered against him upon default. With respect to the settlement of the partition action, defendant alleged that upon his return from his vacation with plaintiff in Barbados, he received a letter from plaintiff’s attorney asking him to discuss a property settlement. Defendant, without assistance of counsel,