Conner v. Conner

In an action for a divorce and ancillary relief, the plaintiff wife appeals (1) from an order of the Supreme Court, Suffolk County (Lifson, J.), dated June 19, 1996, which denied her motion, inter alia, to vacate her default in appearing at trial and for a new trial, and (2) as limited by her brief, from stated portions of a judgment of the same court, entered June 25, 1996, upon her default in appearing at trial, which, inter alia, awarded the husband the entire equitable interest in his business.

Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further,

*615Ordered that on the appeal from the judgment the order is affirmed insofar as reviewed and the appeal from the judgment is otherwise dismissed, without costs or disbursements.

The appeal from the intermediate order dated June 19, 1996, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, James v Powell, 19 NY2d 249; CPLR 5501 [a] [1]).

Although the judgment entered June 25, 1996, was entered upon the plaintiffs default, appellate review of the order dated June 19, 1996, is not precluded since the plaintiff may obtain review of "matters which were the subject of contest below” (James v Powell, supra, at 256, n 3).

Although as a general rule in matrimonial cases the courts have adopted a liberal policy of vacating defaults, it is still incumbent upon the moving party to show a reasonable excuse for the default and the existence of a meritorious claim (see, Baruch v Baruch, 224 AD2d 649). While, as the dissent points out, the plaintiff wife was incarcerated in Florida at the time of the trial, we conclude on the basis of the over-all record, her dereliction with regard to court appearances and obligations was so extensive that the court did not err in proceeding to trial in her absence and in later refusing to vacate the default. Moreover, we also find that the wife failed to show the existence of a meritorious claim. Furthermore, under the circumstances of this case, we find no justification to reopen the trial on the economic provisions of the judgment of divorce.

The wife’s remaining contentions are either unpreserved for appellate review or without merit and we decline to reach them in the exercise of our interest of justice jurisdiction. Rosenblatt, Santucci and Joy, JJ., concur.