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andrada · Sep 19, 2008, 07:14 PM

What would be the best way to vacate a divorce judgement and set aside a stipulation of settlement which was incorporated in the divorce judgement? I think a motion to vacate is not proper, since the judgment has been signed and entered...

JudyKayTee · Sep 20, 2008, 06:15 AM

Originally Posted by andrada

What would be the best way to vacate a divorce judgement and set aside a stipulation of settlement which was incorporated in the divorce judgement? I think a motion to vacate is not proper, since the judgment has been signed and entered....

It would be an Order to Show Cause with supporting Affidavits.

Fr_Chuck · Sep 20, 2008, 07:13 AM

You will have to show some reason that the divorce was granted incorrectly, if the case just went against you that is not a reason.

andrada · Sep 20, 2008, 07:46 AM

Don't I need a plenary action, with a new index number? It's not a default judgment..

JudyKayTee · Sep 20, 2008, 07:51 AM

Originally Posted by andrada

Don't I need a plenary action, with a new index number? It's not a default judgment..

I think more info is needed - I don't understand what happened here.

Both parties agreed to the settlement; both parties agreed to the filing of the Judgment of Divorce/Findings of Fact based on that settlement agreement - ?

Now there is going to be an attempt to set the Judgment aside?

andrada · Sep 20, 2008, 02:51 PM

Hmmm... good question.. the judgement was to be on notice. Plaintiff's attorney stated that the proposed judgement was mailed to the Defendant. D never received it. When they went on the record for the Stip. D clearly said that he had no idea what he signed. Well somehow the judgement got signed and he's stuck with it.

JudyKayTee · Sep 20, 2008, 04:35 PM

Originally Posted by andrada

Hmmm... good question.. the judgement was to be on notice. Plaintiff's attorney stated that the proposed judgement was mailed to the Defendant. D never received it. When they went on the record for the Stip. D clearly said that he had no idea what he signed. Well somehow the judgement got signed and he's stuck with it.

Every question leads to another queston, I guess.

I'm confused by the terms you are using. The Judge is the only party who signs the Judgment - my question is who signed the stipulation (which I think is what we're talking about) on behalf of the Defendant - ?

andrada · Sep 21, 2008, 05:45 PM

I know... the judgement was to be on notice to the Plaintiff. The terms of the judgement (grounds etc.) were included in the stipulation which, of course, was signed by the parties. As with any other stip. they had an appearance in which the judge asked the parties about the quality of their representation etc and, also, about whether they were aware of what they signed. P responded "No". The judge stormed out of the court room and the D's attorney proceeded with the judgement in that she presented it for signature. The judgement was, signed, entered and the stip. Survived just like a contract would. Judgment needs to be vacated, so does the stip, but they go hand in hand. There would be no problem to vacate the stip, except that in this situation there is an entered judgement.

andrada · Sep 21, 2008, 05:48 PM

Sorry I meant to say that D stated he did not know what he signed and P's attorney proceeded with the JUdgement and the Findings of Fact.

JudyKayTee · Sep 22, 2008, 06:26 AM

Originally Posted by andrada

Sorry I meant to say that D stated he did not know what he signed and P's attorney proceeded with the JUdgement and the Findings of Fact.

OK, I think I have it now. But I don't understand how a Judgment was signed and entered without a decision having been made by the bench.

The Judge left the bench without ruling but the Judgment was later signed by the Judge - ?

The FIRST thing I'd do is pull a copy of the Court transcript which should be attached to the Court's copy of the Judgment.

Before the Judgment was entered wasn't it given to both parties for approval? I've never seen - and I suppose it happens - a Judgment, including one following a withdrawal by counsel - that hasn't been (as a courtesy) sent to the "other side" for review before filing.

Sounds like any number of things went wrong.

andrada · Sep 22, 2008, 04:01 PM

That's exactly what happened... and yes, the judge did leave the bench in a storm once she heard that D said he had no idea what he signed.

JudyKayTee · Sep 22, 2008, 04:03 PM

Originally Posted by andrada

that's exactly what happened ... and yes, the judge did leave the bench in a storm once she heard that D said he had no idea what he signed.

I would pull the transcript - your grounds for reversal - and I still think it's an Order to Show Cause why the Judgment should not be nullified.

Amazing stuff happens in the courtroom, doesn't it? This kind of thing is scary - Judge has an attitude, someone else suffers.

andrada · Sep 22, 2008, 06:14 PM

Thank you so much... The only thing I'm afraid of is that he might blow his time to appeal. Again, thank you so much for your time and interest.

JudyKayTee · Sep 23, 2008, 05:57 AM

Originally Posted by andrada

Thank you so much... The only thing I'm afraid of is that he might blow his time to appeal. Again, thank you so much for your time and interest.

The only way you're going to know is to try and in NYS the Courts pretty much bend over backwards to make sure all questions are answered - they don't want this to rear its ugly head in another year. Courts also realize sometimes the dust has to settle a little bit before people take action.

Please come back and let us know how this works out - your experience could be very valuable to someone else.