Opinion
No. No. 125 SSM 15.
Decided June 25, 2008.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered August 30, 2007. The Appellate Division (1) modified, on the law and the facts, an amended judgment of divorce of the Supreme Court, New York County (Phyllis Gangel-Jacob, J.), (2) dismissed, as academic, the appeal from a judgment of that court, (3) modified, on the law and the facts, an order of that court, which had precluded defendant from discovery and deemed certain financial issues resolved, and (4) modified, on the law and the facts, an order of that court, which had granted injunctive relief and directed payment of counsel fees. The modifications consisted of (1) vacating the monetary awards for lost opportunity of forgone earnings, equitable distribution, deficiency of assets, counsel fees and forensic accounting fees, and remanding the matter for a new hearing, with all discovery issues being referred to a referee for report, and the vacatur conditioned on the filing by defendant's counsel of a notice of appearance within 15 days of service of a copy of the order with notice of entry, (2) denying the motion to preclude, and (3) vacating the award of counsel fees and remanding for a new hearing on the merits. The Appellate Division affirmed the judgment and orders as modified. The following question was certified by the Appellate Division: "Was the order of this Court, which modified the amended judgment of the Supreme Court, properly made?"
The parties were married in New York, but during a three-year period thereafter the wife resided primarily in London and the husband resided primarily in Singapore. They separated after three years, and plaintiff wife returned to New York and commenced the instant divorce action. Defendant subsequently executed various documents consenting to jurisdiction and to a divorce, but subsequently challenged personal jurisdiction as well as the equitable distribution directed after he failed to appear at a compliance conference wherein the trial court granted plaintiff's request to preclude defendant from obtaining financial discovery, without notice to defendant, and set the matter down for an inquest. The Appellate Division concluded that while the issue of whether the divorce was properly granted might not be reviewable, the distribution award was reviewable and the order of preclusion without notice was improperly granted.
Warner v Houghton, 43 AD3d 376, affirmed.
Law Office of Barbara Bevando Sobal, New York City ( Barbara Bevando Sobal of counsel), for appellant.
Adam Richards LLC, New York City ( Adam Richards of counsel), for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Contrary to plaintiff's contention, CPLR 5511 does not bar review of the equitable distribution components of a divorce judgment where, as here, defendant was improperly precluded from contesting the awards. Moreover, the Appellate Division did not abuse its discretion as a matter of law in vacating Supreme Court's preclusion order.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.