               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

640
CA 12-00058
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


HICHAM KHALLAD, PLAINTIFF-APPELLANT,

                    V                                     MEMORANDUM AND ORDER

SHELENA BLANC, DEFENDANT-RESPONDENT.


SANTOSH K. PAWAR, PITTSFORD, FOR PLAINTIFF-APPELLANT.


     Appeal from a judgment of the Supreme Court, Monroe County (Elma
A. Bellini, J.), entered July 25, 2011. The judgment, among other
things, declared that a Florida judgment of divorce is valid.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking, inter alia,
a declaration that a judgment of divorce obtained by defendant in
Florida is invalid. In 2002, defendant traveled to Morocco and
conceived a child with plaintiff, a Moroccan native. The parties’
child was born in Florida in July 2003 and, in March 2005, plaintiff
and defendant were married in Florida. Thereafter, the parties
resided together in Florida for one or two months before plaintiff
moved to New York City. In January 2006, defendant filed a petition
for dissolution of marriage in the Circuit Court for the Ninth
Judicial Circuit, in and for Orange County, Florida (hereafter,
Florida court), asserting that the marriage was “irretrievably broken”
and that she and plaintiff had no children in common. Defendant
submitted an “affidavit of diligent search and inquiry,” in which she
averred that plaintiff’s current residence was unknown to her and that
she had made a diligent search and inquiry to discover it. Defendant
then served the petition upon plaintiff by publication in a local
Florida newspaper. Plaintiff did not respond to the petition or
appear in court, and a default judgment was entered against him. In
April 2006, the Florida court granted a final judgment of dissolution
of marriage (hereafter, divorce judgment).

     According to plaintiff, he first learned of the divorce judgment
in or about June 2010, when deportation proceedings were commenced
against him. On July 29, 2010, plaintiff moved to set aside the
default judgment in the Florida court, asserting that he failed to
appear in the divorce action because he did not receive a summons or
petition. Plaintiff further alleged that defendant fraudulently
obtained the divorce judgment inasmuch as she falsely stated that she
did not know where plaintiff lived and that the parties did not have
any children in common. After a hearing, the Florida court denied
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                                                         CA 12-00058

plaintiff’s motion on the ground that it had been filed more than one
year after entry of the divorce judgment (see Fla Rules Civ Pro rule
1.540 [b]).

     Plaintiff thereafter commenced this action seeking a declaration
that the divorce judgment is “invalid and of no force and effect”
because it was fraudulently obtained. By the judgment on appeal,
Supreme Court, inter alia, determined that the divorce judgment should
be granted full faith and credit, and thus declared that the judgment
was valid. We affirm.

     “A divorce judgment of a sister state made in an action in which
both parties were subject to the personal jurisdiction of the court is
entitled to full faith and credit by the courts of this state” (Matter
of Sannuto v Palma-Sannuto, 32 AD3d 443, 443; see Erhart v Erhart, 226
AD2d 26, 27). Absent a jurisdictional challenge, a judgment entered
upon a party’s default is entitled to full faith and credit (see
Steven M. Garber & Assoc. v Zuber, 87 AD3d 1295, 1296, lv denied 18
NY3d 802; Vertex Std. USA, Inc. v Reichert, 16 AD3d 1163, 1163; GNOC
Corp. v Cappelletti, 208 AD2d 498). “The application of full faith
and credit to the judgment of a sister State is the functional
equivalent of interstate res judicata” (DiCaprio v DiCaprio, 219 AD2d
819, 819, appeal dismissed 87 NY2d 967, lv denied 88 NY2d 802, rearg
denied 89 NY2d 861; see Siegel, NY Prac § 471, at 797 [4th ed]). “As
a matter of full faith and credit, review by the courts of this State
is limited to determining whether the rendering court had
jurisdiction, an inquiry which includes due process considerations . .
. Thus, inquiry into the merits of the underlying dispute is
foreclosed; the facts have bearing only in the limited context of our
jurisdictional review” (Fiore v Oakwood Plaza Shopping Ctr., 78 NY2d
572, 577, rearg denied 79 NY2d 916, cert denied 506 US 823; see
Mortgage Money Unlimited v Schaffer, 1 AD3d 773, 774). In determining
whether the Florida court had jurisdiction over plaintiff, we must
“ascertain whether [Florida’s] long arm statute has been complied
with, and whether that court’s exercise of jurisdiction comports with
Federal constitutional principles of due process” (Mortgage Money
Unlimited, 1 AD3d at 774 [internal quotation marks omitted]).

     Here, plaintiff does not contend that he lacked the requisite
minimum contacts with Florida such that allowing the divorce action to
proceed in that state deprived him of due process (see generally
Steven M. Garber & Assoc., 87 AD3d at 1296). Indeed, it is undisputed
that the parties were married and thereafter lived together in
Florida, and that their child was born in Florida (cf. Matter of
Herrmann v Herrmann, 198 AD2d 761). Rather, plaintiff contends that
the Florida court lacked personal jurisdiction because defendant
failed to serve him personally with the summons and petition in the
divorce action in accordance with Florida law (see generally Vertex
Std. USA, Inc., 16 AD3d at 1164). We reject that contention.

     Under Florida law, the summons and petition in a divorce action
“shall be served upon the other party to the marriage in the same
manner as service of papers in civil actions generally” (Fla Stat Ann,
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                                                         CA 12-00058

tit 6, § 61.043 [1]). As a general rule, service of process is made
by delivering a copy of the summons and petition to the person to be
served (see Fla Stat Ann, tit 6, § 48.031 [1] [a]). “[S]ervice of
process on persons outside of th[e] state shall be made in the same
manner as service within th[e] state . . . No order of court is
required” (Fla Stat Ann, tit 6, § 48.194 [1]). As relevant here,
section 49.011 provides that “[s]ervice of process by publication may
be made in any court on any party identified in [section] 49.021 in
any action or proceeding . . . [f]or dissolution or annulment of
marriage,” and section 49.021 (1) in turn provides that “[s]ervice of
process by publication may be had upon . . . [a]ny known or unknown
natural person.”

     As a condition precedent to service by publication, the plaintiff
must file a sworn statement (see Fla Stat Ann, tit 6, § 49.031 [1]),
asserting therein, inter alia, “[t]hat diligent search and inquiry
have been made to discover the name and residence of such person,” and
“that the residence of such person is . . . [u]nknown to the affiant”
(Fla Stat Ann, tit 6, § 49.041 [1], [3] [a]). The notice must be
published once per week for four consecutive weeks in a newspaper
published in the county where the court is located (see Fla Stat Ann,
tit 6, § 49.10 [1] [a]), and proof of publication must be made by
affidavit of an officer or employee, among others, of the newspaper
(see Fla Stat Ann, tit 6, § 49.10 [2]).

     Here, defendant signed an “Affidavit of Diligent Search and
Inquiry” (Fla Family Law Rules of Pro form 12.913 [b]), swearing that
she “ha[d] made [a] diligent search and inquiry to discover the name
and current residence of” plaintiff. Defendant further averred
therein that plaintiff’s “current residence [wa]s unknown to [her],”
and she signed the affidavit under penalty of perjury. A publisher’s
affidavit of publication confirms that the notice was published for
four consecutive weeks in a newspaper in Orange County, Florida, the
situs of the Florida court. Thus, defendant established that she
constructively served plaintiff by publication in accordance with
Florida law (see Fla Stat Ann, tit 6, § 49.021 [1]; § 49.031 [1]; §§
49.041, 49.10 [1] [a]; [2]).

     Plaintiff contends, however, that defendant committed fraud in
procuring service of process by publication because defendant knew
where plaintiff lived and how to contact him. Plaintiff’s contention
may have merit in light of the undisputed fact that defendant visited
plaintiff in New York and stayed at his apartment several months
before she commenced the divorce action. Once it has been determined,
however, that a sister state properly exercised jurisdiction over a
party, our review of the foreign judgment ends and we must accord full
faith and credit to that judgment (see JDC Fin. Co. I v Patton, 284
AD2d 164, 166; see generally Mortgage Money Unlimited, 1 AD3d at 774;
Siegel, NY Prac § 471, at 797-798).

     Plaintiff’s further contention that the Florida court deprived
him of his parental rights by failing to determine issues of custody,
visitation and a parenting plan before dissolving the marriage is
beyond our scope of review. This Court’s inquiry is limited to
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                                                         CA 12-00058

whether the Florida court that rendered the divorce judgment had
jurisdiction (see Fiore, 78 NY2d at 577), and the merits of the
divorce action, including issues of custody, visitation and support,
are not properly before us (see generally Mortgage Money Unlimited, 1
AD3d at 774; JDC Fin. Co. I, 284 AD2d at 166). In any event, we
conclude that those issues should be addressed in Florida, not New
York. The parties were married and lived together in Florida, and
there is a valid judgment of divorce in Florida. In addition,
defendant and the parties’ child continue to reside in Florida.
Florida law permits plaintiff to commence an independent action
challenging the validity of the divorce judgment on the ground of
fraud upon the court more than one year after entry of that judgment
(see Fla Rules Civ Pro rule 1.540 [b]; Lefler v Lefler, 776 So 2d 319,
321 [Fla]). Thus, plaintiff remains free to commence such an action
in Florida to challenge the validity of the divorce judgment and to
assert his rights to custody and visitation.

     We have reviewed plaintiff’s remaining contentions and conclude
that they are without merit.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
