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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.

C ompl aint 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 h eard 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 o f the complaint by publication , in the
Probate and Family Court on July 13, 2010. On that same day a judge of that court allow ed the motion for service by publication , endorsed the motion by noting "service is waived " (emphasis in original), and entered a judgment of annulment.2

There is no indication in the record of the basis upon which the judge waived the requirement of service
. T he defe ndant learned of the annulment in 2012
. The next
year , he sought relief in the Probate and Family C ourt , 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 c ourt denied that motion.
S ervice 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 proce ss 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 juri sdiction, 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 act ions 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. Boar d of Appeals of Marshfield , 16 Mass. App. Ct. 29, 31 (1983) ("Notwithstanding the powerful3

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 issue d 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
.