Augustin v. Augustin

Order, Supreme Court, New York County (Laura E. Drager, J.), entered on or about April 13, 2009, which, to the extent appealed from, as limited by the briefs, denied plaintiffs motion to vacate a judgment of divorce entered by the Clerk of that court in 1985 and for an award of counsel and expert fees, modified, on the law and the facts, to remand the matter for an evidentiary hearing with respect to so much of plaintiffs motion as seeks an order vacating the 1985 judgment of divorce, and otherwise affirmed, without costs. [652] The IAS court denied plaintiff wife’s motion to vacate the 1985 divorce judgment on the ground of fraud. A motion to vacate a judgment upon the ground of fraud pursuant to CPLR 5015 (a) (3) must be made within a reasonable time (see Weimer v Weimer, 281 AD2d 989 [2001] [four-year delay unreasonable]; Richardson v Richardson, 309 AD2d 795 [2003] [12-year delay unreasonable]; Sieger v Sieger, 51 AD3d 1004, 1006 [2008], Iv denied 14 NY3d 711 [2010] [seven-year delay unreasonable]). The IAS court found that the wife was aware of the defendant husband’s alleged misconduct by July 1990, and that she waited until 2008 to move to vacate the judgment. It determined that the wife’s 18-year delay was unreasonable. Although the wife never argued below that the 1985 judgment should be vacated for lack of jurisdiction pursuant to CPLR 5015 (a) (4), contrary to the husband’s contention, this Court may review the argument since it is a legal argument which appears upon the face of the record and could not have been avoided if brought to the husband’s attention at the proper juncture (see Chateau D’ If Corp. v City of New York, 219 AD2d 205, 209 [1996], Iv denied 88 NY2d 811 [1996]). The wife’s argument, however, lacks merit. Although a motion to vacate a judgment for lack of jurisdiction may be made “at any time” (Caba v Rai, 63 AD3d 578, 580 [2009]), such a motion should be denied if the movant acted as if the judgment were in effect before moving to vacate it (Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452, 453 [2007]). Here, the IAS court determined that because the wife did not deny that she submitted the 1985 divorce judgment to the Queens County Family Court in 1992 to obtain support for herself and her children, she waived any objection to the court’s jurisdiction over her (see id.). Given that the wife failed to submit a complete copy of her statement of net worth and her motion to vacate lacked merit, the IAS court providently exercised its discretion in denying the wife’s motion for counsel fees (see Domestic Relations Law § 237 [a]; see generally DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). The IAS court also providently exercised its discretion in denying the wife’s motion for expert fees, namely $1,000 for a handwriting expert’s appearance at trial. Because the wife’s motion to vacate the 1985 divorce judgment was denied, the handwriting expert’s appearance was not necessary. However, inasmuch as each party contends that the other surreptitiously procured the 1985 judgment by some form of deceit, and given the policy implications of a fraud being perpetrated on the court, we exercise our independent discre [653] tion and remand for an evidentiary hearing. If it is found that it was the wife who wrongfully obtained the divorce, her motion to vacate the judgment should be denied. If, however, it was the husband who was fraudulent, then Supreme Court can reach the issue of whether the wife’s delay in seeking to vacate the judgment was reasonable, or whether she waived any challenges to the validity of the judgment by relying on it in seeking maintenance and support in Family Court in 1992. We do not find it necessary at this juncture to draw inferences from an incomplete and contradictory record, particularly in light of our remand for a hearing. Indeed, the need for an evidentiary hearing is manifest by the IAS court’s characterization of the wife’s lack of “credibility and bona fides” and the concurrence’s assertion that “there is a substantial basis for believing that the husband fraudulently obtained the divorce” (emphasis added). Concur — Acosta, Freedman and Román, JJ.