[*2]In this post-judgment matrimonial case, Plaintiff S. H. M. ("Plaintiff") seeks the following relief: an order directing that basic child support payments be made through the New York State Support Collection Unit; an order directing Defendant to pay the sum of $199,500 representing arrears of his spousal support obligation, or in the alternative granting Plaintiff a money judgment for that amount; an order directing Defendant S. M. ("Defendant") to pay the sum of $71,421.00 in child support arrears; an order directing the Defendant to pay $52,183.60 representing his unpaid pro rata share of health care and other add on expenses; an order directing Defendant to pay $72,887.38 representing arrears due to non-payment of his pendente lite obligations; an order awarding Plaintiff the balance of $75,382.84 in Defendant's SAP America Pension; and an order directing Defendant to return all keys to the parties' safe deposit boxes, or upon failure to do so, awarding Plaintiff $250.00 for each unreturned key.

Defendant opposes Plaintiff's motion and has cross-moved for an order pursuant to CPLR 5015(a) relieving him, on the grounds of excusable default, from the Findings of Fact and Conclusions of Law (the "Findings") as well as the Judgment of Divorce (the" Judgement") dated November 18, 2011 and entered on December 5th, 2011 along with the related Decision dated June 29, 2011 (the "Decision"). However, Defendant seeks to have certain portions of the Judgment - - namely, the provisions of the Judgment that dissolved the marriage as well as the terms of the Order of Custody and Parenting time dated April 29, 2011 (the "Custody Terms") incorporated in the Judgment - - remain in effect. In essence, Defendant seeks to have the Court revisit only the financial terms of the Judgment, and leave the remainder of it undisturbed, all on the basis of excusable default.

For the reasons set forth below, Plaintiff's motion is denied without prejudice except with respect to her application to enforce alleged pendite lite obligations of Defendant; as to that branch of Plaintiff's motion, a hearing is ordered. Defendant's motion as styled as a motion to vacate his default is denied except to the extent that such motion will be treated as a motion to modify the terms of the Judgment, nunc pro tunc to the date of the Judgment, with the exception of the terms that dissolved the marriage and the terms with respect to Custody and Parenting Time, which will remain in full force and effect. With respect to the remaining, essentially financial aspects of the Judgment, a hearing is ordered. Factual and Procedural Background

The parties were married on August 23, 1998. They have three daughters, triplets born on May 9, 2007 (the "Children"). Plaintiff commenced the action for divorce by filing a Summons and Verified Complaint on August 31, 2009. The parties, both of whom were, at that time, represented by counsel, appeared at a Preliminary Conference on April 28, 2010 before the Honorable Bruce E. Tolbert. As reflected in the preliminary conference stipulation and order entered into at that time, the parties agreed at that conference that Plaintiff would proceed to obtain a divorce, uncontested, on the grounds of Cruel and Inhuman Treatment, and that no defense or opposition would be interposed by Defendant. Such Preliminary Conference Stipulation/Order, dated April 30, 2010 (the "First Preliminary Conference Order") was signed by the parties and their counsel and so ordered by the Court, and contained the following provisions:

" A. If the issue of grounds is resolved:

1) The parties agree that Plaintiff proceed on an uncontested basis to obtain a divorce on [*3]the grounds of Cruel and Inhuman Treatment and that Defendant agrees not to interpose any defense or opposition to the application by Plaintiff for a divorce."

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4) If the Verified Complaint/Verified Answer with Counter Claim has not been served or must be amended to conform to the agreed upon grounds:

a. Plaintiff agrees to serve the Amended Verified Complaint /Verified Answer with Counter Claim/Amended Pleading on or before May 12, 2010 in accordance with attached amended verified complaint; and

b. On or before May 20, 2010, the parties agree to submit to the Court a Stipulation signed by the parties and their counsel completing the provisions set forth in items A1 through A3 above."

Despite the form-printed use of word "[i]f" that begins the first paragraph, the underlined language was inserted by the parties into the standard preliminary conference order form and indicates that the issue of divorce grounds had been resolved, but an amended verified complaint had not been served. A companion Preliminary Conference Stipulation and Order, also dated April 30, 2010 and signed by the parties (the "Second Preliminary Conference Order") confirms that "[T]he issue of fault is resolved" (p. 3) and that the Summons (presumably with the original Verified Complaint) was filed on August 31, 2009 and served on February 13, 2010. (Id., p. 2) (A copy of the Summons and Verified Complaint is annexed as Exhibit A to Defendant's Cross-Motion). It is undisputed that Defendant never served a formal Answer to the Verified Complaint, and there is no evidence in the record that Plaintiff ever served an Amended Verified Complaint. Thus, both Preliminary Conference Orders reflect that the parties agreed to proceed on the sole divorce ground of Cruel and Inhuman Treatment as alleged in Count 2 of the original Verified Complaint.

On March 1, 2011, the parties appeared before a different judge, Hon. Robert Berliner, for a pre-trial conference. Plaintiff was represented by recently retained counsel Shari B. Rackman, the Children by Attorney for the Children Robin Carton, and the Defendant, who had previously been represented by counsel, appeared pro se. As reflected in the transcript of the pre-

trial conference ( attached as Exhibit A to Plaintiff's Reply Affidavit), Plaintiff's attorney first advised the Court that she had only recently been retained and had searched for but could not locate - - in her file or in the County Clerk's office - - any formal Answer to Plaintiff's Verified Complaint. In addition, Plaintiff did not then and has never produced an affidavit of service or any other proof that an Amended Verified Complaint had ever been served in accordance with the First Preliminary Conference Order, or that such an Amended Verified Complaint ever existed. Nevertheless, after some inquiry by the Court, Plaintiff's counsel made an oral application for a default judgment based upon the lack of a formal Answer by Defendant to the original Verified Complaint.

Defendant was then asked by the Court if he had anything to say. Defendant first [*4]inquired of the Court as to the meaning of a default judgment, and was informed that the Court could not explain that to him because the Court was "not his attorney" and "could not give him legal advice" (March 1 Tr., p. 13). When the issue of whether an answer had been filed was raised, Defendant stated that "I am sorry, your Honor, I am not aware of what I was supposed to be doing." (Id.) In light of Defendant's failure to establish that an Answer had been filed, the Court granted Plaintiff's oral application for a default judgment on the record and set the matter down for an inquest on April 29, 2011 on the issues of equitable distribution, maintenance, and child support.

The inquest took place on April 29, 2011 (the "Inquest"). The Inquest proceeded based on the Verified Complaint - - not the ever-illusive Amended Verified Complaint. Defendant was permitted to cross examine witnesses, but was precluded from offering evidence or testimony and was prevented from making a statement before the proceedings started (April 29 Transcript p. 4, lines 22-25). Although Defendant did cross-examine Plaintiff, nearly all of the Plaintiff's counsel's objections to his questions were sustained, and Defendant's own testimony proscribed. For example, Defendant was not permitted to testify regarding his personal expenses incurred or to be incurred for health insurance - - a topic testified to by Plaintiff - - despite his assertion that such questions were relevant because he was trying to establish that a major portion of his earnings was actually spent to "keep [himself] alive." The Court precluded such testimony, explaining to Defendant that "[w]ell, unfortunately you defaulted. This is an inquest so it's not appropriate." (Inquest Transcript p. 63-64). At the conclusion of Defendant's cross-examination of her, Plaintiff rested and the Court advised Defendant that "[t]his is an inquest, you are not allowed to put in any evidence." The Court then rendered the written Decision on June 29, 2011 as well as Findings of Fact and Conclusions of Law (the "Findings") which were filed with the Judgment on December 5, 2011.

The Findings as well as the Judgment are predicated upon the service and filing of, and the allegations contained in, the original Verified Complaint - - not an Amended Verified Complaint as Judge Tolbert's First Preliminary Court Order appeared to direct. The Judgment also refers solely to the initial Verified Complaint. By his Cross-Motion, Defendant seeks, on the ground of excusable default, relief from the Judgment and Findings, except for the terms relating to the dissolution of the marriage and Custody Terms incorporated in the Judgment.

Discussion and Conclusions

CPLR � 5015 (a)(1) provides that the Court which rendered as a judgment on default may vacate it upon motion of a party on the grounds of "excusable default." As 5015 (a)(1) provides:

"Rule 5015. Relief from judgment or order

(a) On motion. The Court, which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

1. Excusable default, if such motion is made within one year after service of a copy of the Judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry." [*5]

Unexceptionable case law furnishes the additional requirement that the moving party "establish . . . a potentially meritorious cause of action or defense as the case may be". Lueders v. Boma-Lueders, 85 AD3d 1130, 1131 (2d Dept. 2011); see also Wong v. Wong, 300 AD2d 473 (2d Dept. 2002). The Court notes that Defendant's Cross-Motion to vacate was interposed within the one year time period.Defendant has also adduced the defenses he claims that he would have asserted had he been permitted to adduce evidence.

Defendant maintains that the Judgment should be vacated because, put simply, he was not in default on March 1, 2011. Defendant may well be correct. His default was not and could not have been based on a want of appearance; Defendant initially appeared in the action by counsel, participated, through and with counsel, in preliminary and other conferences, and was physically present in Court when the default against him was pronounced and at the Inquest held several weeks later. Instead, the default was predicated solely upon Defendant's failure to serve an Answer to the Complaint. However, under the circumstances that obtained at the time of the default was declared, Defendant may not have been required to serve an answer or any responsive pleading. At a conference held months before, and while Defendant was represented by counsel, the parties agreed that they would not contest divorce grounds, and thereby agreed - - implicitly if not explicitly - - that Defendant need not answer the Verified Complaint. As the First Preliminary Conference Order - - signed by the parties and their counsel in April 2010 - - states in its first paragraph:

"A. If the issue of grounds is resolved:

1) The parties agree that Plaintiff proceed on an uncontested basis to obtain a divorce on the grounds of Cruel and Inhuman Treatment and that Defendant agrees not to interpose any defense or opposition to the application by Plaintiff for a divorce." (Underscoring in Original).

The second Preliminary Conference Order/Stipulation reiterates that "the issue of fault is resolved." (Second Preliminary Conf. Order, p. 3).

While the First Preliminary Conference Order suffers from some ambiguity - - a subsequent paragraph appears to require Plaintiff to serve an Amended Verified Complaint consistent with the parties' agreed upon grounds - - the fact remains that no amended complaint was ever served, as evidenced by the fact that the Inquest proceeded on the original, Verified Complaint, and the ultimate Judgment of Divorce as well as the Findings make no mention of an Amended Verified Complaint. Under the circumstances, Defendant was thus not in default for failure to answer since no answer was required.

In the oftentimes peculiar world of matrimonial law, a defendant is not invariably required to serve an answer to the complaint in order to avoid the scourge of default. Indeed, it is axiomatic that the preliminary purpose of pleadings in the matrimonial context is to determine whether there are statutory grounds for divorce, and if so, whether such grounds are contested. Issues such as custody, child support and equitable distributions must, of course, be determined during the course of the divorce proceeding, but lie outside the central ambit of the pleadings. Such a consignment of the formal pleadings to, in essence, a preliminary, gate-keeping role in the divorce action is reflected in Plaintiff's Verified Complaint filed herein. Factual allegations relating to grounds predominate, with no substantive allegations relating to the other issues ultimately to be decided even mentioned until the "wherefore" clauses, when such issues are [*6]listed as forms of "ancillary relief," to which, unlike factual allegations in the body of a complaint, a defendant need not address in detail in his or her pleading. (See Siegel, New York Practice, pp.370-373 [5th Ed. 2011]; CPLR 3017).

As a result, if a matrimonial defendant is served with a complaint, appears pro se or by counsel, and concedes that grounds for divorce as alleged are present, serving an answer may well prove an unnecessary and redundant exercise. Indeed, courts have recognized as much by declining to declare a defendant in default who, while failing to timely file a formal answer or appearance, has nonetheless signaled his or her readiness to proceed by his or her presence and participation in the case. For example, in the Second Department case of Carlin v. Carlin, 52 AD3d 559, 560-561 (2d Dept. 2008), the Court affirmed the denial of plaintiff's motion for leave to enter judgment on default against defendant despite defendant's failure to timely serve an answer, in light of defendant's effective appearance by participating in, among other things, preliminary conferences among the parties and the court. As the Second Department held,

"Finally, although the defendant failed to timely file an answer, she, amongother things, opposed the plaintiff's numerous motions, interposed crossmotions, and appeared and participated at a preliminary conference.Accordingly, especially given the liberal approach adopted by the courts inmatrimonial actions which favors dispositions on the merits (see Pierre v.Pierre, 298 AD2d 511, 512, 748 N.Y.S.2d 870), the defendant made aninformal appearance in the action and is therefore not in default."

See also, Taylor v. Taylor, 64 AD2d 592 (1st Dept. 1978) (Husband deemed not in default despite his failure to timely serve a formal notice of appearance and demand for complaint: "While it is true that the formal notice of appearance was not timely served . . . nonetheless it is equally true that, by actively litigating the issue of alimony and child support and fully submitting to the jurisdiction of the court, [defendant] had made an informal appearance in the action . . . and was therefore technically not in default.") (Citations omitted); cf. Rubenstein v Mabstoa, 280 AD2d 312, 313 (1st Dept. 2001) ("While defendants apparently never filed an answer, their records indicating that a settlement had been reached a year and a half after the complaint was received and their participation at the preliminary conference sufficiently demonstrated active involvement, constituting an appearance by both parties, in the litigation.").

A similar situation obtained in the instant case. Both parties appeared at and participated in preliminary conferences, and agreed to at least two preliminary conference orders. The parties also agreed upon grounds for the divorce - - Cruel and Inhuman Treatment - - and so stipulated in both Preliminary Conference Orders. As far as pleadings were concerned, nothing further remained to be done. The "ancillary" issues of custody, equitable distribution and the like would be addressed during the course of the action and in the procedural manner set forth in the detailed and prolix matrimonial part rules - - but not necessarily as subjects of a further pleading.

Accordingly, in the instant case, Defendant does not appear to have been in default herein; he did not serve an answer because he was not strictly required to do so. Indeed, any answer would merely has confirmed what the parties had already agreed to - - divorce on the grounds of cruel and inhuman treatment.

That does not mean, however, that Defendant, by failing to answer, effectively waived his right to contest the remaining, largely economic issues to be determined in the action - - such as [*7]maintenance, child support, equitable distribution and others listed in the Complaint's "wherefore" clause, or that he should be precluded from offering evidence with respect to such issues. Here, Defendant - - despite his presence in Court - - was precluded from offering his testimony or other evidence on the issues testified to by Plaintiff and ultimately decided by the Court. Defendant clearly had relevant testimony to offer on such issues, as reflected in his affidavit in support of his Cross-Motion herein as well as the Inquest transcript. Indeed, Defendant, by his affidavit, has adduced facts that would have called into question certain evidence introduced by Plaintiff regarding the economic or custody issues. Moreover, Defendant stood ready and willing to do so by his testimony at trial, but was prevented from so doing. A fair reading of Defendant's Affidavit proffering what he would have presented as a defense at trial plainly demonstrates that he has set forth meritorious defenses.

Unfortunately for Defendant, however, the procedural mechanism for him to accomplish what he apparently seeks to achieve by his motion - - a hearing on the merits with respect to the parties' respective financial obligations to each other - - is not a motion to vacate a default pursuant to CPLR 5015. CPLR 5015 presupposes that a default has occurred and the defaulting party has an excuse for defaulting - - a situation distinct from that which Defendant claims obtains here, namely, that no default should have been declared in the first place. In the latter situation, the defaulting party's contention is, in essence, that the trial court erred; therefore the remedy is not a motion to vacate, but an appeal of the judgment. Whether Defendant has availed himself of this potential remedy by taking an appeal is unclear from the papers.

What is clear from the papers, however, is one salient fact: both parties wish to remain divorced. After all, both parties agreed - - at least twice - - not to contest fault grounds for divorce and to proceed on the ground of Cruel and Inhuman Treatment, which they did. At least one of the parties has since remarried. And, prior to March 2011 - - at or about the time of the Preliminary Conference Orders in April 2010 - - the parties freely entered into a Stipulation and Order of Custody and Parenting terms.

The Court sees no reason to disturb either of these final determinations.

It would serve no purpose to vacate the Judgment at this late date, even if such a result were permitted under CPLR 5015. By the same token, it would not be equitable to enforce, unchallenged, all of the terms of the Judgment as arrived at in November 2011. For, while Plaintiff, at the Inquest, was afforded the opportunity to marshal the facts as she saw them and present her case on the ancillary, principally financial issues, Defendant, then pro se, was foreclosed from doing so. The question of whether such a ruling comports with the strict pleading regimen that obtains under the CPLR or, even if it does, runs afoul of accepted practice in matrimonial matters is of no moment. The controlling issue is whether Defendant should now be afforded the same opportunity to be heard as the Court gave to Plaintiff.

Indeed, this case, as with many in the matrimonial arena, cries out for the application of equitable rather than strict legal principles. In the not uncommon cases such as the instant one, where different casts of judges and counsel, as well as conferences abound, confusion and obfuscation - - intentional or not - - rather than clarity and unity of purpose are often the consequence. A court may step into that beach and strive to attain a just result, or at least seek to ensure that both sides are fairly heard. Cf. Block v. Block, 153 AD2d 601 (2d Dept. 1989); Scheinkman, NY Law of Dom. Rel. �25.8 at p. 413). ("[A] court exercising the inherent power [*8]to vacate a prior order that was based upon incorrect information may properly require a hearing relating to a downward modification of maintenance where it had previously denied a hearing.").

In the instant case, in view of the circumstances that were present at the times that the default was declared and the Inquest conducted, the Court is constrained by its equitable imperative to provide a mechanism by which the finality of the divorce and custody protocol may be preserved while permitting the other issues bound up in the Judgment to be heard on the merits - - as cases uniformly favor. (See, e.g., Carlin v. Carlin, 52 AD3d 559 (2d Dept. 2008); Pierre v. Pierre, 298 AD2d 511 (2d Dept. 2002). Granting a hearing under the rubric of a change in circumstances modification to certain terms of the Judgment would accomplish that result. The law clearly permits issues such as those present here - - the level of child support, maintenance and equitable distribution - - to be revisited upon a showing of a significant change in circumstances. See, e.g., Soba v. Soba, 213 AD2d 472 (2d Dept. 1995); Boden v. Boden, 42 NY2d 210 ( 1977); Prisco v. Buxbaum, 275 AD2d 461 (2d Dept. 2000). Circumstances have arguably changed significantly since the time when Defendant was declared to be in default and an inquest ordered.Defendant is now represented by counsel and is now not only ready and willing - - as he was at the time of the Inquest - - but able to do so. Moreover, Defendant has adduced alleged facts not before the Court when its Decision and Judgment was rendered - - facts relating to Defendant's past, present and projected health, physical and financial.

By employing such a procedure, both parties would be allowed to enjoy the benefit of the matters in which they concededly agree - - a divorce and Custody Terms - - while requiring a hearing on the merits on the items that, as of the March 2011 Conference and the date of Judgment, remained in dispute - - the primarily financial issues that attend but are not technically central to most divorces, contested or otherwise.

In view of the foregoing, the Court will treat Defendant's motion not as a motion to vacate, but as a motion to modify certain items of the Judgment entered on default after Inquest. As such, Defendant has adduced sufficient facts to warrant a hearing.Accordingly, Defendant's cross-motion is granted to the extent that a hearing is ordered; Plaintiff's motion to enforce the terms of a Judgment that may well be modified as a result of such a hearing is denied without prejudice, except that a hearing with respect to the portion of Plaintiff's motion seeking to enforce alleged pendente lite obligations of Defendant is ordered. The parties are directed to appear on August 20, 2013 at 9:30 A.M. for a conference at which a hearing date will be set.

The foregoing constitutes the Decision and Order of this Court.

Dated: July 29, 2013

White Plains, New York

Hon. John P. Colangelo

Acting Supreme Court Justice