Opinion
DOCKET NO. A-2363-14T1
07-21-2016
LUONG CHAU, a/k/a WILSON CHAU, Plaintiff-Respondent/Cross-Appellant, v. KHON KIM CHAU, n/k/a PHAN KIM KHON, Defendant-Appellant/Cross-Respondent.
Stephen H. Roth argued the cause for appellant/cross-respondent (Mr. Roth, attorney; Mr. Roth and Michele M. DeSantis, on the brief). Glenn M. Finkel argued the cause for the respondent/cross-appellant (The Levine Law Firm, LLC, attorneys; Mr. Finkel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. FM-07-22249-80. Stephen H. Roth argued the cause for appellant/cross-respondent (Mr. Roth, attorney; Mr. Roth and Michele M. DeSantis, on the brief). Glenn M. Finkel argued the cause for the respondent/cross-appellant (The Levine Law Firm, LLC, attorneys; Mr. Finkel, on the brief). PER CURIAM
The parties were divorced in 1982. In 2014, thirty-two years after the divorce, defendant Phan Kim Khon filed a motion to vacate the divorce contending that, although she knew of the divorce in 2006, she thereafter obtained documents that showed that plaintiff Luong Chau had falsely certified in 1981 that he did not know her location and, thus, had improperly obtained the 1982 judgment of divorce (JOD) by default. The Family Part denied defendant's motion to vacate the JOD in a December 12, 2014 order. Defendant now appeals. We affirm.
At oral argument before us, plaintiff withdrew his cross-appeal from the denial of his request for an award of attorney's fees. --------
I.
The record, including certifications filed by and on behalf of the parties, established the facts and procedural history. The parties were married in 1967 in Vietnam. They had three children; two daughters, who currently live in the United States and are emancipated, and a son, who died as a child in 1980.
In 1975, plaintiff fled Vietnam because of the impending communist takeover and immigrated to the United States. Defendant and the three children remained in Vietnam. Between 1975 and 1981, plaintiff sent letters to defendant, including a signed application for family reunification in 1980. Plaintiff's brother also sent letters to defendant between 1975 and 1981. Plaintiff certified that defendant never responded to any of his letters or other attempts to communicate with her. Defendant does not dispute that she never responded to plaintiff. She does certify that in 1981, she asked a neighbor to communicate with plaintiff's brother regarding the death of the parties' son, but she did not explain whether the neighbor actually communicated with plaintiff's brother.
In May 1981, plaintiff, who was then a resident of New Jersey, filed for divorce in Essex County. His complaint asserted a separation of more than eighteen consecutive months as the basis for divorce. Plaintiff also filed an application to serve defendant by publication, certifying that he had "not seen nor heard from the Defendant directly or indirectly since the time [he] left Vietnam in May of 1975, nor [did he] know her present whereabouts." The Family Part granted plaintiff's application and entered an order permitting substitution of service on defendant in accordance with Rule 4:4-5(a)(3) by one publication in the Star-Ledger newspaper. Following the publication, on June 18, 1982, a JOD was entered. Plaintiff had not sought, and the judgment of divorce does not address, any determination concerning alimony, equitable distribution, custody or child support.
By 1983, plaintiff had remarried and the couple had a son. Approximately a year after the divorce, plaintiff's oldest daughter sent him a letter requesting financial assistance. Plaintiff wrote back informing his daughter that he was remarried and had a new son. Thereafter, in 1993, the parties' two daughters came to the United States to live with plaintiff and his second wife. In 1996, plaintiff and his son visited Vietnam and met with defendant.
In 2004, defendant immigrated to the United States. Defendant certified that she learned of her divorce in 2006 when, with the assistance of a New Jersey attorney, she obtained copies of the 1981 complaint, plaintiff's certification of inquiry, and the 1982 JOD. Defendant also certified that it took from 2006 until the summer of 2014, for her and her daughter "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]."
In September 2014 defendant, represented by an attorney, moved to vacate the 1982 JOD. Defendant also sought to file her own complaint for divorce and sought alimony and equitable distribution based on a "47 year marriage." Defendant also filed lis pendens on three properties, one of which was owned by plaintiff and two of which were owned by plaintiff's adult son. Plaintiff cross-moved to deny defendant's motion, discharge the lis pendens, and obtain an award of attorney's fees. Judge Donald A. Kessler heard oral arguments on December 12, 2014, and denied defendant's motion to vacate the 1982 JOD, discharged the lis pendens, and denied plaintiff's motion for attorney's fees. Judge Kessler set forth the reasons for his ruling on the record, explaining that defendant admitted she knew of the divorce in 2006, but failed to act diligently by waiting until 2014 to file her motion to vacate the divorce. Judge Kessler also reasoned that defendant had failed to make reasonable financial claims, noting that defendant never addressed 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 now appeals the December 12, 2014 order denying her motion to vacate the 1982 JOD.
II.
On appeal, defendant makes four arguments: (1) the 1982 JOD is void; (2) plaintiff perpetuated a fraud on the court and under Rule 4:50-3, the JOD should be vacated; (3) defendant's claim for alimony, child support and equitable distribution were never addressed in the 1982 proceedings; and (4) the judge erred in not conducting a plenary hearing and the ruling was "harsh and erroneous." All of defendant's arguments on this appeal depend on her application to void or vacate the 1982 JOD. Because defendant has failed to establish grounds for relief from the 1982 final JOD, we reject defendant's arguments and affirm.
The grant of relief from a final judgment is governed by Rule 4:50-1 to -3. Rule 4:50-1 authorizes a court to relieve a party from a final judgment or order for reasons such as:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order."The rule 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.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Mancini v. EDS ex rel. N.J. Auto. Fill Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)).
Rule 4:50-2 requires a motion to vacate to "be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken."
Rule 4:50-3 provides that:
A motion under R. 4:50 does not suspend the operation of any judgment, order or proceeding or affect the finality of a final judgment, nor does this rule limit the power of a court to set aside a judgment, order or proceeding for fraud upon the court or to entertain an independent action to relieve a party from a judgment, order or proceeding.When fraud has been committed on the court, Rule 4:50-3 allows relief to "be obtained 'without limitation as to time.'" Tara Enters., Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 52 (App. Div. 2004) (quoting Shammas v. Shammas, 9 N.J. 321, 327 (1952)). A party arguing that a fraud was committed on the court must "demonstrate[], clearly and convincingly, that a party has 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." Triffin v. Automatic Data Processing, Inc. (Triffin II), 411 N.J. Super. 292, 298 (App. Div. 2010) (quoting Triffin v. Automatic Data Processing, Inc. (Triffin I), 394 N.J. Super. 237, 251 (App. Div. 2007)). Additionally, a fraud on the court may occur when a party commits perjury whether through oral or written testimony. See Von Pein v. Von Pein, 268 N.J. Super. 7, 15-16 (App. Div. 1993). But cf. Shammas, supra, 9 N.J. at 329-30 (noting that perjured testimony alone may be insufficient to vacate a judgment).
We review a court's determination of a Rule 4:50-1 motion under an abuse of discretion standard. Guillaume, supra, 209 N.J. at 467-68. There is "an abuse of discretion when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
Applying these principles, we affirm Judge Kessler's order. Defendant did not establish that there were grounds to declare the 1982 JOD void. Defendant also failed to establish, by clear and convincing proofs, that plaintiff committed a fraud on the court. In both regards, defendant focuses on plaintiff's attempts to communicate with her. Critically, however, defendant offers no proof that she ever responded to plaintiff's attempts to contact her prior to 1983. Indeed, at oral argument before us, her counsel conceded that defendant had no proof of such responding communications. Given the absence of proof in the record, defendant cannot establish that a fraud was committed on the court nor that the 1982 JOD should be deemed void. See Triffin II, supra, 411 N.J. Super. at 298.
Defendant has also not established grounds for relief under Rule 4:50-1. The record demonstrates that defendant knew of her divorce from plaintiff for 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, defendant's argument for relief completely ignores that plaintiff has been married to his second wife for over thirty years. Relief under Rule 4:50-1 has its foundations in "the equitable notion that courts should have authority to avoid an unjust result in any given case." Guillaume, supra, 209 N.J. at 467 (quoting Mancini, supra, 132 N.J. at 334). Here, defendant has given no consideration to how her application would work an inequitable and unjust result on plaintiff's second wife.
In sum, the record amply supports Judge Kessler's denial of defendant's motion. We conclude that Judge Kessler did not abuse his discretion and we perceive no reason to disturb his order.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION