by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
It seems like the plot of a Lifetime movie, but it is not (or, at least, not yet). Plaintiff and defendant marry in 1967 in Vietnam. In 1975, plaintiff flees Vietnam because of the "impending communist takeover." He ends up in New Jersey where, in 1981 he files for divorce. The judgment of divorce is entered in 1982, after which plaintiff re-marries. In 2004, defendant immigrates to the United States and ten years later seeks to vacate the divorce and collect alimony and equitable distribution "based on a 47 year marriage." These are the basic facts in a recent unpublished Appellate Division decision, Chau v. Khon.
Here are the relevant missing details. After coming to America in 1975, plaintiff sent letters to defendant, "including a signed application for family reunification." Plaintiff's brother also sent letters to defendant. These letters were sent between 1975 and 1981, but defendant never responded. Plaintiff filed for divorce in 1981, asserting a separation of more than 18 consecutive months as the basis for the divorce. Because he had not heard from his wife in six years, and did not know here whereabouts, he sought permission to serve her by publication. The court agreed, and following publication, a judgment of divorce was entered.
Plaintiff remarried and the couple had a son. Plaintiff also had two daughters from his first marriage. In 1993, the daughters came to live with their father and his new wife. In 1996, plaintiff and his son even visited Vietnam and met with defendant. In 2004, defendant immigrated to the United States. She claims that she learned about the divorce in 2006 when she obtained copies of the original complaint and judgment of divorce. Nonetheless, she waited until 2014 to (1) move to vacate the original divorce and (2) file her own complaint for divorce, seeking alimony and equitable distribution going back to the original 1967 wedding date. She also filed lis pendens on three properties, only one of which was owned by plaintiff (the other two were owned by his son). Defendant claimed that she waited ten years to file the complaint because it took her that long to "obtain all of the papers they needed to prove that plaintiff knew where she was living in 1981 and 1982 so she could challenge his fraudulent divorce from her." This was important to her because, among other arguments, defendant claimed that plaintiff's assertion that he did not know her whereabouts when he filed the complaint for divorce was a fraud on the court.
Plaintiff opposed the motion to vacate the divorce and cross moved to discharge the lis pendens and for an award of attorney's fees. The trial court denied defendant's motion and granted plaintiff's motion (except the request for fees). The trial court explained that defendant "admitted that she knew of the divorce in 2006 , but failed to act diligently by waiting until 2014 to file her motion to vacate the divorce." It also held that defendant failed to "address[] how her motion and proposed new divorce complaint would affect plaintiff's second wife, who had been married to plaintiff for over thirty years." Defendant appealed.
The Appellate Division affirmed the trial court's decision. It did so by applying the high standard governing motions to vacate final judgments, which is designed to "reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case."
Under Rule 4:50-1, a final judgment can only be set aside if, among other reasons, the judgment is void. A motion seeking to vacate final judgment on these grounds must be "made within a reasonable time." (The other reasons to vacate final judgment under Rule 4:50-1 include mistake, inadvertence, surprise, excusable neglect, newly-discovered evidence, and fraud by an adverse party. If a motion to vacate final judgment is based on any of these grounds, it must be brought "not more than one year after the judgment" was entered.)
Under Rule 4:50-3, a judgment can also be set aside where there has been a "fraud upon the court." A motion seeking to vacate a judgment on this basis can be made "without limitation as to time." But, a party arguing that fraud was committed upon the court must "demonstrate, clearly and convincingly, that a party [ ] sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability to impartially . . . adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense."
In Chau, the Appellate Division held that wife failed to show that the judgment was void or that husband had committed fraud on the court. There was no fraud on the court because defendant admitted that she failed to respond to plaintiff's attempts to contact her prior to the judgment of divorce being entered. Plaintiff's contention that he did not know defendant's whereabouts could not be considered a fraud on the court when defendant admitted that she did not respond to any of his numerous attempts to contact her.
Defendant also could not establish that the judgment of divorce was void because she waited too long to file her motion. As the Appellate Division noted: "The record demonstrates that defendant knew of her divorce from plaintiff a long period of time before she ever brought her motion. Even if we accept defendant's claim that she learned of the divorce in 2006, the ensuing eight years of delay were unreasonable."
Finally, the Appellate Division rejected defendant's arguments in their entirety because she "completely ignore[d] that plaintiff has been married to his second wife for over thirty years." Given that the rules regarding vacating final judgments are grounded in the "equitable notion that courts should have authority to avoid an unjust result," defendant's motion was fatally flawed because she gave "no consideration to how her application would work an inequitable and unjust result on plaintiff's second wife."
Pete's Take 