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Decisions of Interest

BY ALM Staff
September 02, 2003

Appellant May Not Appeal From Default Judgment

The court dismissed this appeal by defendant wife because the only proper means for her to seek a remedy on a judgment of divorce entered in default was by motion to vacate. Fibert v. Fibert, No. 92956, 2003 N.Y. App. Div. LEXIS 6360 (Sup. Ct., App. Div. St. Lawrence Cty. 6/5/03) (Carpinello, J.).

The wife deliberately absented herself from the divorce proceedings when it became apparent that she would not succeed in her efforts to obtain physical custody of the couple's two children. As a consequence, she did not contest any issue before Supreme Court, including equitable distribution of the parties' assets. Thereafter, the court granted plaintiff a judgment of divorce on the grounds outlined in his complaint and also, inter alia, equitably distributed the parties' property. This being the case, defendant's appeal from the judgment of divorce was dismissed since no appeal lies from a judgment entered upon default. Rather, her remedy is a motion to vacate the default on a showing of a reasonable excuse for the default and a meritorious defense.

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