New,York,Divorce,Jurisdiction, law New York Divorce Jurisdiction Equitable Distribution Spousal
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Bolivar Aguirre, Respondent, v. Vilma Aguirre,Appellant.SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRSTDEPARTMENTDecember 2, 1997, Decided December 2, 1997, EnteredFact: The parties were married in Ecuadorin 1963. They have six emancipatedchildren. Neither of the parties speaks or reads English with any degree offacility. Throughout their marriage, plaintiff-husband supported his wife andchildren. He works as a building porter, and his gross weekly salary as ofDecember 1995 was $ 538.74. Plaintiff isalso a member of a union that provided him with an attorney in this divorce proceeding. Several years after being diagnosed with aserious illness the defendant sought spousal support. It was granted. The Plaintiff sought a divorce, advising hisilliterate defendant wife that if she did not wish to contest the divorce sheshould sign the summons and the proceedings would be expedited. After thedivorce was granted the wife learned that no equitable distribution had beenordered and that in a separate action the husband been relieved of his spousalsupport obligations. The trial courtreconsidered the equitable distribution issue, but affirmed its originaljudgment. Defendant wife sought reviewof an order of the Supreme Court, Bronx County, which grantedplaintiff husband's divorce petition without any provision for equitable distributionor maintenance. The wife also sought transfer of the matter to another county.Issues: Whether the divorce judgment should be vacated for lack of jurisdiction? Whether the Queens County having Jurisdiction to hear the divorce proceedings? This court vacated the divorcejudgment to the limited extent of ordering a hearing on the issue of equitabledistribution. Upon re-argument, thecourt, in the order appealed from, adhered to its original determination. By signing the "Appearance and Acknowledgementof Service of Summons", defendant appeared in the action and waived anydefects in service. Defendant'sexcusable default argument fails for the same reason; the divorce judgment wasrendered on consent, not upon default, and therefore CPLR 5015 does not apply. Nevertheless, defendant persuasively arguesthat these facts present a case of "extrinsicfraud", i.e., "a fraud practiced in obtaining a judgment such that aparty may have been prevented from fully and fairly litigating the matter." Here, the plaintiff obtained a divorcejudgment that was silent as to all financial issues by obtaining his illiteratewife's signature on an appearance and acknowledgement form, and assuring herthat he "was seeking a divorce and nothing more". The parties were married for thirtyyears, they raised six children, and the defendant did not work outside thehome throughout the marriage. Given the precarious status of her health, it isunlikely that she will ever become self-supporting. The defendant is suffering from lupus, shehas no present savings, no source of income, and she is ineligible forgovernment assistance due to her immigration status. An award of permanentmaintenance may be warranted under these circumstances. The defendant may also be entitled to healthand life insurance coverage. This Courtnote that if defendant is found to be entitled to a share of plaintiff's futurepension, she will not receive it until he retires. Finally, inasmuch as plaintiff does notdispute the allegation that both parties presently live in Queens and hasraised no objections to defendant's request to transfer this action to Queens County,such relief is granted.Conclusion: The court reversed the judgment ofthe trial court, vacated the judgment of divorce, and transferred the matter tothe county in which the parties resided.Disclaimer:Thesesummaries are provided by the SRIS Law Group. They represent the firms unofficial views of the Justicesopinions. The original opinions shouldbe consulted for their authoritative content
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