Mohrmann v. Lynch-Mohrmann

736 In a matrimonial action in which the parties were divorced by judgment entered May 8, 1997, upon the defendant former wife’s default, and a related action to partition real property, the defendant former wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Mc-Nulty, J.), dated March 31, 2004, as denied her motion pursuant to CPLR 5015 (a) (3) to vacate the judgment of divorce. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. Under the circumstances of this case, the Supreme Court’s denial of the defendant former wife’s motion to vacate the judgment of divorce was a proper exercise of its discretion. The defendant former wife failed to meet her burden of establishing by admissible evidence the existence of fraud, misrepresentation, or other misconduct on the plaintiffs part sufficient to entitle her to vacatur of the judgment of divorce (see CPLR 5015 [a] [3]; Badgett v Badgett, 2 AD3d 379 [2003]; Matter of Forte v Forte, 304 AD2d 577 [2003]; Bergen v Bergen, 299 AD2d 308 [2002]; Marotta v Dinozzi, 287 AD2d 491 [2001]; Cofresi v Cofresi, 198 AD2d 321 [1993]; cf. Matter of Fischer v Fischer, 21 AD3d 554 [2005]; Shad v Shad, 167 AD2d 532 [1990]). Indeed, the defendant former wife concedes that, at the latest, she became aware of the allegedly objectionable terms of the final divorce judgment in 1999, but she did not move to amend the judgment until 2003, in response to the plaintiffs request for partition of the former marital residence. She took no appeal from the order denying that motion. In 2004 she moved to vacate the 1997 divorce judgment, this time claiming that the plaintiff had procured that default judgment through fraud by concealing that she was mentally ill and incapacitated at the time the judgment was entered. However, she submitted no competent, admissible medical evidence to support that assertion. Accordingly, the Supreme Court properly denied the motion. The contrary conclusion reached by the dissent is based upon a consideration of unsworn letters and other inadmissible documents which, in any event, failed to set forth any professional medical opinion that the defendant former wife may have lacked the mental ability to adequately protect her rights and interests during the relevant time period. Adams, J.P., Crane and Mastro, JJ., concur.