Shakhriyor Khusenov v. Dilorom Tursunova
Attorneys and Parties
Brief Summary
Family law (divorce) and civil procedure—personal jurisdiction and service of process in matrimonial actions
Denied the wife's motion to vacate a 2014 judgment of divorce.
The denial of the motion to vacate and the validity of the 2014 divorce judgment.
The husband failed to prove proper service and thus failed to establish personal jurisdiction over the wife; no affidavit of service existed, the wife credibly testified she was never served, and a purported affidavit attributed to her was found to be forged. There is no time limit to move to vacate a void judgment, and the wife did not waive or ratify the judgment.
Background
In 2014, a default judgment of divorce was entered against the wife. The husband produced no affidavit of service and later admitted he took no steps to have the summons served, initially claiming a paralegal handled service. The only document suggesting service was an 'affidavit' purportedly by the wife, which the motion court found to be forged. Years later, the wife moved to vacate the judgment for lack of personal jurisdiction.
Lower Court Decision
Supreme Court, New York County (Katz, J.) denied the wife's motion to vacate the 2014 divorce judgment, notwithstanding crediting her testimony that she was never served and finding the purported affidavit of the wife to be forged.
Appellate Division Reversal
Reversed, without costs. The Appellate Division held it could consider the wife's jurisdictional argument raised for the first time on appeal; there is no time bar to vacate a judgment void for lack of personal jurisdiction; and the husband bore—and failed to meet—the burden of showing proper service. The judgment of divorce is a nullity and is vacated. The matter is remanded for further proceedings, including on the wife's application for attorneys' fees under 22 NYCRR 130-1.1 [New York Codes, Rules and Regulations (NYCRR) rule allowing the court to award costs and attorney's fees for frivolous conduct].
Legal Significance
Affirms that a judgment entered without personal jurisdiction due to improper service is void and may be attacked at any time, even for the first time on appeal. The plaintiff bears the burden to establish proper service. Mere post-judgment awareness does not cure jurisdictional defects, and waiver requires affirmative conduct evidencing an intentional relinquishment of the defense.
A default divorce judgment obtained without proper service is a nullity; lack of personal jurisdiction can be raised at any time, and purported ratification requires clear, affirmative acceptance of the judgment’s validity.