Frivolous Motions and Setting Aside Old Judgments:

November 2, 2009

The last couple of months in my practice have seen a flurry of frivolous motions to set aside or modify existing judgments, based solely on one party's desire for a different result than they had originally agreed to. Maybe it's the economy driving litigants to re-divide assets, or attorneys who need the work, but it seems to be an epidemic in my office - often where one party has been denied relief by the judge, that person keeps coming back with a different strategy.

The basic rule of law is that a judgment is final, and can only be set aside or modified for specific reasons, such as fraud, mistake, an undivided asset, or failure to serve an appropriate declaration disclosing assets. The policy of the law is that judgments should be a final resolution, not an invitation to further litigation.

Let's say, for example, that boyfriend gives girlfriend an engagement ring - they get married - they stay married for 10 years - they get divorced - in their judgment the wife is awarded all her jewelry. A few years later, the husband decides he wants his ring back. Should he get it? What did wife give up to get her jewelry? Maybe nothing, maybe a lot, but the parties negotiated an agreement.

How many times do we litigate the value of the wife's jewelry, or whether it is community or separate property? How many years do we allow the husband to wait before he changes his mind, and files a motion to divide the ring?

Or how about a case we see often: The house is awarded to husband, and he pays wife an equalization payment for one-half the equity. In this market, he may not be able to refinance the property, or it may be upside down and can't be sold or refinanced, but he intends to stay there so he buys her out. Because of the conditions of the market [or just bad lawyering], no one put anything in the marital settlement agreement about refinancing the property to take wife's name off the mortgage. Wife got her bargain, and husband got his - how many years later can wife come back and sue, claiming she should have gotten an order that her ex-husband should be required to refinance the property to take her name off or, if he can't do that, he must sell the house? What if the house had equity when they got a divorce, but now it is upside down - can the court order him to sell the house at a loss?

It is easy to come up with these hypotheticals because we and our friends see such motions filed all the time. To curb these frivolous motions, the legislature has seen fit to set limitation periods for the filing of such motions, depending on the nature of the grievance. For fraud, the longest periods generally, the right to sue usually starts at the time you knew about the fraud, or should have known about it - in other words, if you had all the documents all along, but didn't look at them, maybe you should have known about the "alleged fraud" and the period might run from the date of the judgment rather from a date years later when you bothered to look.

The point of this post is to point out a flaw in the system, allowing people to sue when there is absolutely no merit to their position, with no consequences. Yes, courts have the power to order sanctions for frivolous motions, judges just don't tend to want to upset anyone by actually ordering sanctions. Who is more likely to complain? The party who is sanctioned, or the one who doesn't get a sanction award - I guaranty you it is the former - judges tend to take the easier path, sometimes assuming that people really aren't mean spirited, even when they clearly are.