HICHAM KHALLAD, PLAINTIFF-APPELLANT, V SHELENA BLANC, DEFENDANT-RESPONDENT.
CA 12-00058
SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
June 15, 2012
640
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
SANTOSH K. PAWAR, PITTSFORD, FOR PLAINTIFF-APPELLANT.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: 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 а 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 thе 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 commоn. 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 tо 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 оr 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 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.
“A divorce judgment of a sister state made in an action in which both parties were subject to the personal jurisdiction оf the court is entitled to full faith and credit by the courts of this state” (Matter of Sannuto v Palma-Sannuto, 32 AD3d 443, 443; see Erhart v Erhart, 226 AD2d 26, 27). 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 AD3d 1295, 1296, lv denied 18 NY3d 802; Vertex Std. USA, Inc. v Reichert, 16 AD3d 1163, 1163; GNOC Corp. v Cappelletti, 208 AD2d 498). “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 AD2d 819, 819, appeal dismissed 87 NY2d 967, lv denied 88 NY2d 802, rearg denied 89 NY2d 861; see Siegel, NY Prac § 471, аt 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 considerаtions . . . 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 NY2d 572, 577, rearg denied 79 NY2d 916, cert denied 506 US 823; see Mortgage Money Unlimited v Schaffer, 1 AD3d 773, 774). In determining whether the Florida court hаd jurisdiction over plaintiff, we must “ascertain whether [Florida‘s] long arm statute has been complied with, and whether that court‘s exercise of jurisdiction comports with Fеderal constitutional principles of due process” (Mortgage Money Unlimited, 1 AD3d at 774 [internal quotation marks omitted]).
Here, plaintiff does not contend that he lacked the requisite minimum contacts with Florida such that allowing the divorce action to proceed in that state deprived him of due process (see generally Steven M. Garber & Assoc., 87 AD3d at 1296). Indeed, it is undisputed that the parties were married аnd thereafter lived together in Florida, and that their child was born in Florida (cf. Matter of Herrmann v Herrmann, 198 AD2d 761). Rather, plaintiff contends that the Florida court lacked personal jurisdiction becаuse defendant failed to serve him personally with the summons and petition in the divorce action in accordance with Florida law (see generally Vertex Std. USA, Inc., 16 AD3d at 1164). We reject that contention.
Under Florida law, the summons and petition in a divorce action “shall be served upon the other party to the marriage in the same manner as service of papers in civil actions generally” (
As a condition precedent to service by publication, the plaintiff must file a sworn statement (see
Here, defendant signеd an “Affidavit of Diligent Search and Inquiry” (
Plaintiff contends, however, that defendant committed fraud in procuring service of process by publication because defendant knew where plaintiff lived and how to contact him. Plaintiff‘s contention may have merit in light of the undisputed fact that defendant visited plaintiff in New York and stayed at his apartment several months before she commenced the divorce action. Once it has been determined, however, that a sister state properly exercised jurisdiction over a party, our review of the foreign judgment ends and we must accord full faith and credit to that judgment (see JDC Fin. Co. I v Patton, 284 AD2d 164, 166; see generally Mortgage Money Unlimited, 1 AD3d at 774; Siegel, NY Prac § 471, at 797-798).
Plaintiff‘s further contention that the Florida court deprived him of his parental rights by failing to determine issues of custody, visitation and a parenting plan before dissolving the marriage is beyond our scope of review. This Court‘s inquiry is limited to
We have reviewed plaintiff‘s remaining contentions and conclude that they are without merit.
Entered: June 15, 2012
Frances E. Cafarell
Clerk of the Court
