The parties were married in Ecuador in 1963. They have six emancipated children. Neither of the parties speaks or reads English with any degree of facility. Throughout their marriage, plaintiff-husband supported his wife and children. He works as a building porter, and his gross weekly salary as of December 1995 was $ 538.74. Plaintiff is also a member of a union that provided him with an attorney in this divorce proceeding.
The parties were married in Ecuador in 1963. They have six emancipated children. Neither of the parties speaks or reads English with any degree of facility. Throughout their marriage, plaintiff-husband supported his wife and children. He works as a building porter, and his gross weekly salary as of December 1995 was $ 538.74. Plaintiff is also a member of a union that provided him with an attorney in this divorce proceeding. Several years after being diagnosed with a serious illness the defendant sought spousal support. It was granted. The Plaintiff sought a divorce, advising his illiterate defendant wife that if she did not wish to contest the divorce she should sign the summons and the proceedings would be expedited. After the divorce was granted the wife learned that no equitable distribution had been ordered and that in a separate action the husband been relieved of his spousal support obligations. The trial court reconsidered the equitable distribution issue, but affirmed its original judgment. Defendant wife sought review of an order of the Supreme Court, Bronx County, which granted plaintiff husband's divorce petition without any provision for equitable distribution or maintenance. The wife also sought transfer of the matter to another county.
Issues:
This court vacated the divorce judgment to the limited extent of ordering a hearing on the issue of equitable distribution. Upon re-argument, the court, in the order appealed from, adhered to its original determination. By signing the "Appearance and Acknowledgement of Service of Summons", defendant appeared in the action and waived any defects in service. Defendant's excusable default argument fails for the same reason; the divorce judgment was rendered on consent, not upon default, and therefore CPLR 5015 does not apply. Nevertheless, defendant persuasively argues that these facts present a case of "extrinsic fraud", i.e., "a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter." Here, the plaintiff obtained a divorce judgment that was silent as to all financial issues by obtaining his illiterate wife's signature on an appearance and acknowledgement form, and assuring her that he "was seeking a divorce and nothing more".
The parties were married for thirty years, they raised six children, and the defendant did not work outside the home throughout the marriage. Given the precarious status of her health, it is unlikely that she will ever become self-supporting. The defendant is suffering from lupus, she has no present savings, no source of income, and she is ineligible for government assistance due to her immigration status. An award of permanent maintenance may be warranted under these circumstances. The defendant may also be entitled to health and life insurance coverage. This Court note that if defendant is found to be entitled to a share of plaintiff's future pension, she will not receive it until he retires. Finally, inasmuch as plaintiff does not dispute the allegation that both parties presently live in Queens and has raised no objections to defendant's request to transfer this action to Queens County, such relief is granted.
Conclusion:
The court reversed the judgment of the trial court, vacated the judgment of divorce, and transferred the matter to the county in which the parties resided.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
Virginia Mediation Settlement Agreement Lawyers Attorneys
The parties were married on October 13, 1995, and that they separated on or about February 27, 1997. The parties entered into a mediation settlement agreement on January 14, 1998, and upon due notice to wife, depositions were taken of husband and his corroborating witness on April 16, 1998. Plaintiff wife filed for divorce from defendant husband.
Virginia Mediation Separation Marital Dissolution Lawyers Attorneys
Husband, an active member of the United States Navy, executed, after separation from his wife, a survivor's benefit plan election certificate, providing a deferred annuity for wife and children. The husband had three options, no participation for the wife, an immediate annuity, or a deferred annuity.
New York Nassau County Divorce Agreement Division Of Property Lawyers Attorneys
Prior to commencement of an action for divorce, the parties entered an agreement for the division of their property that expressly provided that the agreement would not be modified by or merged into any divorce judgment. The agreement was challenged by the husband and upheld. The wife was later granted her counterclaim for divorce.
