(DOWNLOAD) "Wilma Shaw v. Peter Shaw" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Wilma Shaw v. Peter Shaw
- Author : Supreme Court of New York
- Release Date : January 03, 1983
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 63 KB
Description
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 Manganos 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 plaintiffs 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 A.D.2d 998). However, defendants 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 A.D.2d 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 N.Y.2d 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 [97 A.D.2d 403 Page 404]