by Sarah Van Voorhis and Ariel Sosna
Dwyane Wade of the Miami Heat has been feeling the heat on and off the court. Bad puns aside, Wade has been involved in a contentious divorce and custody battle that has lasted longer than the marriage did and is not ending any time soon.
Wade was married to Siohvaughn Funches-Wade for five years. During their divorce, Funches-Wade was arrested for kidnapping the children, accused Wade of keeping asthma medicine from the them and made a host of other allegations. Eventually, Wade was granted sole custody of the children. After six years of legal wrangling, a Cook County Judge entered the parties’ settlement as a judgment over Funches-Wade’s objection. She claimed that she had not agreed to all the terms, which included a mutual non-disparagement provision. The judge decided she had agreed to the terms and entered the judgment based on those terms. In California, this would have been a CCP §664.6 motion to enforce a settlement agreement.
Just three days after the judgment was entered in July, Funches-Wade camped out on the street with a sign that said “NBA Miami Heat star, mother of his children on the streets.” TMZ now reports that Funches-Wade has filed pleadings requesting that the court nullify the judgment. The grounds for this request are not clear. The Chicago Sun-Times reports that the settlement gives Funches-Wade the parties’ home, four cars, and other assets worth about $5 million.
In California, Funches-Wade would be requesting to set aside the agreement and judgment entered by the court. Marriage of Stevenot (1984) 154 CA3d 1051, 1072. Grounds for setting aside a judgment run out at various time periods between six months and two years after entry of judgment (CCP §473, Family Code §§2120-2129). Since only three months have passed, the passage of time does not limit Funches-Wade’s options. Generally, she will have to allege that there was: fraud (i.e., hidden assets, Fam. Code §2122(a)), perjury (Fam. Code §2122(b)), mistake (either unilateral or mutual and a mistake of law or fact), or noncompliance with the asset, debt, and income disclosure requirements (Fam. Code §2100-2113).
Funches-Wade could also allege she signed under duress or lacked mental capacity to enter the agreement (Fam. Code §2122). Given Funches-Wade’s “camp-out” sign, what she would like to claim is that the judgment was inequitable when entered. However in California, this argument is not allowed. Fam. Code §2123. Since the court looked closely at the parties’ judgment when it was entered and this case was so heavily litigated, it is not likely that Funches-Wade will succeed.
About the authors:
Sarah Van Voorhis, a Certified Family Law Specialist, and Ariel Sosna are founding partners of Van Voorhis & Sosna.