Eibert v. Eibert

306 A.D.2d 603, 759 N.Y.S.2d 711, 2003 N.Y. App. Div. LEXIS 6360

Opinion

—Carpinello, J.

Appeal from a judgment of the Supreme Court (Rogers, J.), ordering, inter alia, equitable distribution of the parties’ marital property, entered February 19, 2002 in St. Lawrence County, upon a decision of the court.

In the midst of the trial in this divorce action, defendant intentionally absented herself from the courtroom when it became apparent that she was not going to succeed in her efforts to obtain physical custody of the parties’ two children. As a consequence, she did not contest any issue before Supreme Court, including equitable distribution of the parties’ assets. Thereafter, Supreme 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 must be dismissed since no appeal lies from a judgment entered upon default (see Albert v Schoenlein, 229 AD2d 813, 814 [1996]). Rather, her remedy is a motion to vacate the default upon a showing of a reasonable excuse for the default and a meritorious defense (see Mancino v Mancino, 251 AD2d 963 [1998]).

Cardona, P.J., Mercure, Peters and Rose, JJ., concur. Ordered that the appeal is dismissed, without costs.