Uzoma v. Okereke

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14-P-1184 Appeals Court

MARY-PAT UZOMA vs. AUGUSTINE I. OKEREKE.

No. 14-P-1184.

Norfolk. April 13, 2015. - September 11, 2015.

Present: Grainger, Rubin, & Blake, JJ.

Divorce and Separation, Relief from judgment. Probate Court,
Judgment. Judgment, Relief from judgment. Practice,
Civil, Service, Vacation of judgment.

Complaint for annulment filed in the Norfolk Division of
the Probate and Family Court Department on July 13, 2010.

A motion to vacate judgment, filed on August 26, 2013, was
heard by George F. Phelan, J.

Harold N. Robertson for the husband.
Thomas Arthur Hensley for the wife.

RUBIN, J. The plaintiff filed a complaint for annulment,

and a motion for service of the complaint by publication, in the

Probate and Family Court on July 13, 2010. On that same day a

judge of that court allowed the motion for service by

publication, endorsed the motion by noting "service is waived"

(emphasis in original), and entered a judgment of annulment.
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There is no indication in the record of the basis upon which the

judge waived the requirement of service.

The defendant learned of the annulment in 2012. The next

year, he sought relief in the Probate and Family Court,

ultimately filing an amended motion under Mass.R.Dom.Rel.P.

60(b)(4) to vacate the judgment. The first judge having

retired, a second judge of that court denied that motion.

Service in this case was inadequate to provide the notice

of the action required by principles of due process. See, e.g.,

Wang v. Niakaros, 67 Mass. App. Ct. 166, 172 (2006)

("[A]cquisition of personal jurisdiction over a defendant cannot

be satisfied without proper service of process or an appropriate

substitute"). Consequently, the judgment is void. See, e.g.,

id. at 169 ("If a judgment is void for lack of subject matter or

personal jurisdiction, or for failure to conform to the

requirements of due process of law, the judge must vacate it").

The main thrust of the plaintiff's argument is that because of

the delay between the defendant's receiving actual notice of the

judgment and his actions seeking to vacate that judgment, he

waived his entitlement to vacatur under rule 60(b)(4).

The underlying judgment in this case is void. There is no

time limit with respect to rule 60(b)(4) motions based on void

judgments. See, e.g., Bowers v. Board of Appeals of Marshfield,

16 Mass. App. Ct. 29, 31 (1983) ("Notwithstanding the powerful
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interest in finality of judgments, a motion for relief from a

judgment which was void from its inception lies without

limitation of time"). The question is not one of waiver by the

defendant of a right, but of a lack of authority on the part of

the court to have issued the underlying judgment. Because the

judgment is void, no action by the defendant in delaying his

challenge can render it valid.

The order denying the motion to vacate the judgment is

therefore reversed.

So ordered.