The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 were read on this motion to/for VACATE-DECISION/ORDER/JUDGMENT/ AWARD.
Upon the foregoing documents, it is

In this motion, Defendant seeks to have the Judgement of Divorce dated October 27, 2022, and filed on November 22, 2022, vacated, and to assert a claim for maintenance and child support. The underlying Judgement of Divorce was issued on default.

The parties were married on January 26, 2014. Plaintiff and Defendant resided together in Shanghai for 5 years. In 2019, the Plaintiff left China to study in America. There is one child of the marriage, born [Redacted]. The child is a U.S. citizen but is currently residing with Defendant Father in Shanghai, China.

In October 2021, Plaintiff filed for divorce. Due to China's COVID restrictions in 2021 [*2]and the high cost of travel, Plaintiff could not effectuate the service of the summons and complaint upon the Defendant personally or by any other prescribed personal method. The Plaintiff was granted permission to use alternative service by Court Order dated December 22, 2021. Plaintiff alleges that through her counsel she sent the Summons with Notice and other documents by registered mail to the Defendant's address on December 23, 2021, as mandated by the Court. Defendant states that he never received the Summons with Notice and other documents. Both parties acknowledge that due to China's COVID policies, mail was shut down in Shanghai, and likely that is why the Defendant ultimately never received the Summons with Notice and other documents. Plaintiff does not dispute that service was improper, instead both parties agree that the Defendant likely never received the Summons with Notice and other documents mailed to him. Despite other forms of service and communication being available, like WeChat, the Defendant states having no knowledge of the commencement of this action until receiving the final judgement via WeChat. The Defendant was unable to answer without knowledge of the action however the Plaintiff moved for default for an Uncontested Divorce. On October 27, 2022, a Judgement of Divorce was entered on default. Defendant states that he did not receive any mail from the Plaintiff or the Plaintiff's attorney, including the final judgement.

To vacate the Judgement for Divorce, the defaulting party must establish both a reasonable excuse for the default and the existence of a meritorious defense. (Osman v. Osman, 83 AD3d 1022, 922 [2nd Dept 2011]). However, the trial courts of this State have adopted a liberal policy with respect to vacating defaults in matrimonial actions. Id. A motion to vacate a default is addressed to the trial court's sound discretion. Plaintiff concedes that the service upon Defendant most likely did not occur, and that the Defendant brought this action to vacate within the prescribed time permitted by statute to do so. There is no dispute that the Defendant has a reasonable excuse for the default. However, Plaintiff denies the existence of a meritorious claim made by Defendant. The general rule for when a default judgement should be opened has been applied in actions with particular liberality if the default was excusable, and the movant has a meritorious defense. (see, D'Alleva v. D'Alleva,127 AD2d 732 [2nd Dept 1987]; Bustamante v. Bustamante, 144 AD2d 418, 533 [2nd Dept 1988]). The Court has found potentially meritorious positions with respect to ancillary economic issues in a divorce action, including maintenance. (see, Osman v. Osman, 83 AD3d. 1022, 922 [2nd Dept 2011]). The Plaintiff did not show that they would be prejudiced by setting aside this judgement. The Defendant has met his burden of showing a prima facia claim for a potentially meritorious claim with respect to financial disputes, including the issues of child support, spousal support, and equitable distribution. Upon the foregoing documents, there are findings that the calculated income and overall financials are at issue.

Custody cannot be determined because the child does not live in New York. The Defendant finds issue with the amount of child support ordered, alleging that the reported income was incorrect and child support should be recalculated. The Defendant further alleges that he never waived spousal maintenance and that add-on expenses for the child were not considered in the calculated child support. The Plaintiff also states wanting to make changes to the custody arrangement, including bringing back the child back to America. The Court believes it is appropriate to consider these financial and custody claims as a meritorious defense as to the underlying judgement of divorce. The Court finds that the failure to properly serve the Defendant is a reasonable excuse for the default and the moving party has [*3]shown that there are meritorious claims. Given that the child is currently located in China it may be preferrable to file there and deal with all ancillary issues there.

Accordingly, it is

ORDERED, that Defendant's application to vacate the Judgment of Divorce is granted.

This constitutes the Decision and Order of the Court.