TIMOTHY M. MCCORMACK v. YAJIE XIE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TIMOTHY M. MCCORMACK,

Plaintiff-Respondent,

v.

YAJIE XIE,

Defendant-Appellant.

_________________________________

May 17, 2016

Argued October 19, 2015 Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-18-10.

Yajie Xie, appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant Yajie Xie appeals pro se from the Family Part's September 15, 2014 order denying her motion to vacate the judgment that annulled her marriage to plaintiff Timothy McCormack. For the reasons that we follow, we affirm.

Plaintiff, a United States citizen, and defendant, a Chinese citizen, were married in 2007.1 On July 7, 2009, plaintiff filed a complaint for an annulment based on fraud, or alternatively, a divorce due to "irreconcilable differences." He alleged defendant entered into the marriage solely for the purpose of obtaining a green card, as evidenced by her failure to ever move in with him after their marriage, and her lack of communication with him once she obtained her green card. At the time of the filing, plaintiff alleged that defendant's whereabouts were unknown, but he believed she had returned to China in April 2009. For that reason, defendant effectuated service of process through publication.

Thereafter, when defendant failed to answer the complaint, plaintiff sought entry of default. The court scheduled a hearing on August 30, 2010 to address the issue of whether to grant an annulment, or to instead dissolve the marriage by divorce. Defendant failed to appear, and the court entered a default. At the conclusion of the hearing, the court issued a judgment of nullity of the parties' marriage.

Nearly four years later, on July 2, 2014, defendant filed a motion to vacate the judgment of nullity arguing that plaintiff misled the court by making false statements about their marriage and his knowledge of her whereabouts at the time he filed his complaint. Defendant claimed that both parties visited her family in China on April 19, 2009, when she was detained by Chinese officials a few days later under a charge of embezzlement. She alleged that as a result of being incarcerated, she was unable to have direct contact with plaintiff since Chinese law forbade her from communicating in a foreign language in this case, English to another individual outside of China. She maintained, though, that plaintiff indirectly communicated with her through her niece, via letter and e-mail correspondence.

Defendant challenged plaintiff's contentions that they were not together during their marriage by submitting their shared health insurance plan and phone bills, and photos of the couple, together and with their families or friends. While most of the pictures are not date-stamped, a few of them revealed time-stamp dates after the couple was married. To further establish that she and defendant had a genuine marriage, defendant requested the court consider that plaintiff executed his living will on March 6, 2009, two months before he filed for an annulment, appointing her as his health care proxy.

In opposition, plaintiff submitted a pro se certification contending that the judgment of annulment should not be vacated. Plaintiff repeated the contentions made in his initial request to obtain an annulment, and further indicated that he attempted to locate defendant for more than a year. He also added that he re-married after the judgment of nullity. Defendant filed a reply maintaining that plaintiff's contentions were untruthful.

On September 15, 2014, a different judge than the one who entered the judgment of nullity, issued an order and statement of reasons denying defendant's motion to vacate the judgment on the basis that the motion was untimely per Rule 4:50-2, as it was filed more than one year after the judgment. The judge noted that while defendant may have been in China when the nullity judgment was entered, it was not equitable to either party to reopen the judgment given that plaintiff has since remarried and remained married for the past three years. This appeal followed.

Rule 4:50-1(a)-(e) authorizes a court to relieve a party from a final judgment or order for reasons such as: mistake or inadvertence; certain newly discovered evidence; fraud; the judgment or order is void; or the judgment or order has been satisfied. Subsection (f) of Rule 4:50-1 provides a catch-all provision that authorizes a court to relieve a party from a judgment or order for "any other reason justifying relief from the operation of the judgment or order." The essence of subsection (f) is to achieve equity and justice in exceptional situations that cannot be easily categorized. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (citing Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)).

Rule 4:50-2 requires that a motion for relief under Rule 4:50-1 be filed within a "reasonable time." However, where the relief sought is based on reasons set forth in Rule 4:50-1(a) ("mistake, inadvertence, surprise, or excusable neglect"), (b) ("newly discovered evidence") or (c) ("fraud"), the motion must be filed within one year of entry of the judgment. Ibid.

We review a court's determination of a Rule 4:50-1 motion under an abuse of discretion standard. U.S. Bank National Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). 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 the trial court's order on the grounds that defendant's motion to vacate the judgment of nullity made almost four years after the judgment was entered was untimely. Defendant has not presented us with any reason to conclude otherwise. In fact, defendant's motion to vacate did not explain when she was released from custody, when she found out that the judgment of nullity had been granted, and why it took her so long to file her motion. Moreover, we are satisfied that plaintiff made good faith efforts to contact defendant while she was in China, thus making entry of the judgment proper. Lastly, plaintiff has since re-married, and therefore, we see no equity in reinstating the parties' marriage.

Affirmed.

1 The record, which does not include a certificate of marriage, reflects inconsistent marriage dates. Plaintiff asserted that they were married on November 30, while defendant claimed that the marriage occurred on December 4, 2007. The ambiguity is inconsequential and does not affect our decision.