| Gonzalez v Richmond |
| 2009 NY Slip Op 09617 [68 AD3d 1057] |
| December 22, 2009 |
| Appellate Division, Second Department |
| America Gonzalez, Respondent, v William LawrenceRichmond, Appellant. |
—[*1] Maffei Maffei & Keating, Yonkers, N.Y. (Matthew J. Keating of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment of the SupremeCourt, New York County, dated October 4, 1999, the defendant appeals from an order of theSupreme Court, Westchester County (Jamieson, J.), entered October 27, 2008, which denied hismotion, inter alia, to vacate his default in appearing for a hearing on the plaintiff's motion, interalia, to adjudge him in contempt.
Ordered that the order is reversed, on the law and as a matter of discretion, with costs, themotion is granted, and the matter is remitted to the Supreme Court, Westchester County, forfurther proceedings in accordance herewith.
The Supreme Court improvidently exercised its discretion in denying the defendant's motionto vacate his default in appearing before the Supreme Court on June 4, 2008 (see Wong vWong, 300 AD2d 473, 474 [2002]; Adams v Adams, 255 AD2d 535, 536 [1998])."Although a party seeking to vacate a default must establish a reasonable excuse for the defaultand a meritorious defense, this Court has adopted a liberal policy with respect to vacatingdefaults in matrimonial actions" (Wong v Wong, 300 AD2d 473, 474 [2002]). Here, thedefendant not only presented a reasonable excuse for his and his attorney's failure to appearbefore the Supreme Court on June 4, 2008, he also presented a meritorious defense to theplaintiff's motion, inter alia, to adjudge him in contempt of the child support provisions of theparties' divorce judgment, and a meritorious case in support of his application for a downwardmodification of his child support obligations (see Opperisano v Opperisano, 35 AD3d686, 687 [2006]; Matter of Dellagatta v McGillicuddy, 31 AD3d 549, 550 [2006]).
The trial court improperly considered the merits of the defendant's case under the "extremehardship" standard applicable to spousal maintenance modification, when it should have appliedthe "unanticipated and unreasonable change in circumstance" standard applicable to requestedchild support modification (see Matter of Schlakman v Schlakman, 66 AD3d 786 [2009];Matter of Ripa v Ripa, 61 AD3d 766 [2009]; Matter of Connolly v Connolly, 39AD3d 643 [2007]).
The defendant is entitled to a hearing, as he raised triable issues of fact regarding his [*2]ability to pay and whether there has been a substantial,unanticipated, and unreasonable change of circumstances since the entry of the divorce judgment(see David v David, 54 AD3d 714, 714-715 [2008]; Opperisano v Opperisano,35 AD3d at 688; see generally Matter of Ripa v Ripa, 61 AD3d 766 [2009]). Dillon,J.P., Florio, Miller and Angiolillo, JJ., concur.