De Pass v. De PassDe Pass v. De Pass
Fоllowing 17 years of marriage and the birth of two children, the parties entered into a separation agreement in March 2004. Thereafter, plaintiff commenced this divorce action in April 2005 based on living apart under the аgreement. Defendant failed to file a timely answer and, when plaintiff movеd for a default judgment of divorce, defendant then submitted an opposing affidavit and a proposed answer asserting, among other things, that the pаrt of the separation agreement dealing with marital property was unconscionable and the product of fraud, duress and overreaching. Although those papers were apparently submitted by defendant on оr about July 11, 2005, Supreme Court nevertheless shortly thereafter signed the default judgment on July 23, 2005, and that judgment was entered in September 2005. Once the judgment was entered, defendant promptly moved pursuant to
“A party seeking to vacate a default judgment must establish both а reasonable excuse for the default and a meritorious defensе” (Trim v Trim, 21 AD3d 1203, 1204 [2005] [citation omitted]; see Loris v S & W Realty Corp., 16 AD3d 729, 730-731 [2005]; Arvanetes v Arvanetes, 191 AD2d 893, 893 [1993]). The requirements for vacating a default judgment are, however, apрlied less rigorously to matrimonial actions (see Trim v Trim, supra at 1204; Payne v Payne, 4 AD3d 512, 513 [2004]; O‘Brien v O‘Brien, 149 AD2d 830, 831 [1989]). Here, the separаtion agreement was prepared by a mediator, neither party retained counsel and, according to defendant, the mediator was a friend of plaintiff. In that agreement, defendant waived all her rights to plaintiff‘s Stаte Police pension in exchange for a 75% interest in the net proceeds of the eventual sale of the marital residence. According to defendant, plaintiff‘s pension might be worth over $1.5 million, whereas the equity interest in the house may result in less than $15,000 (and her own pension as a teacher‘s aid will be insignificant). She stated that she was not previously aware of the value of plaintiff‘s pension, that her rights to a share of it and to financial disclosure were never explained to her, and that plaintiff pressured hеr into signing the separation agreement. She further stated that she failed to answer the complaint in a timely fashion because she had no knowledge of her legal rights and she had been led to believe that there was nothing she could do since she had lived apart from plaintiff for over a year. Applying the liberal standard for vacating a default in matrimonial aсtions, we are persuaded to set aside this default in light of all the circumstances, including that defendant made efforts to answer before the defаult judgment was entered, she thereafter moved promptly to set aside thе default, she set forth an excuse for her delay in answering, and she has allеged a significant discrepancy in the division of the parties’ propеrty as well as conduct surrounding the execution of the separation agreement which raises issues of potential merit.
Based on the foregоing, the appeal from the order denying defendant‘s motion for recоnsideration is dismissed as moot.
Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur.
Ordered that the order entered March 8, 2006 is reversed, on the law and facts, without costs, motion to vacate granted, and defendant is directed to serve an answer within 20 days of the date of this order. Ordered that the appeal from the order entered July 17, 2006 is dismissed, as moot, without costs.