Carter v. Carter

Appellate Division of the Supreme Court of New York

Carter v. Carter

265 A.D.2d 520, 697 N.Y.S.2d 127, 1999 N.Y. App. Div. LEXIS 10833

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 25, 1999

StatusPublished

Cited by2 cases

This text of 265 A.D.2d 520 (Carter v. Carter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter v. Carter, 265 A.D.2d 520, 697 N.Y.S.2d 127, 1999 N.Y. App. Div. LEXIS 10833 (N.Y. Ct. App. 1999).

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Opinion

—In a matrimonial action in which the parties were divorced by a judgment dated October 25, 1996, the defendant appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated April 6, 1999, which denied his motion, inter alia, to modify the judgment of divorce by directing that the defendant’s 40 IK plan be divided between the parties as of January 15, 1994, instead of January 3, 1994.

Ordered that the order is affirmed, with costs.

A separation agreement, which, as here, does not merge into thé judgment of divorce, survives as a separate contract to which the parties are bound (see, Riley v Riley, 179 AD2d 750; Lambert v Lambert, 142 AD2d 557). Consequently, while a judgment of divorce may be attacked pursuant to CPLR 5105, the underlying separation agreement will remain unimpeached unless challenged in a plenary action (see, Riley v Riley, supra; Culp v Culp, 117 AD2d 700). The failure of the defendant to commence a plenary action is fatal to his application. S. Miller, J. P., Thompson, Krausman, Florio and Schmidt, JJ., concur.

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—In a matrimonial action in which the parties were divorced by a judgment dated October 25, 1996, the defendant appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated April 6, 1999, which denied his motion, inter alia, to modify the judgment of divorce by directing that the defendant’s 40 IK plan be divided between the parties as of January 15, 1994, instead of January 3, 1994.

Ordered that the order is affirmed, with costs.

A separation agreement, which, as here, does not merge into thé judgment of divorce, survives as a separate contract to which the parties are bound (see, Riley v Riley, 179 AD2d 750; Lambert v Lambert, 142 AD2d 557). Consequently, while a judgment of divorce may be attacked pursuant to CPLR 5105, the underlying separation agreement will remain unimpeached unless challenged in a plenary action (see, Riley v Riley, supra; Culp v Culp, 117 AD2d 700). The failure of the defendant to commence a plenary action is fatal to his application. S. Miller, J. P., Thompson, Krausman, Florio and Schmidt, JJ., concur.

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Bluebook (online)

265 A.D.2d 520, 697 N.Y.S.2d 127, 1999 N.Y. App. Div. LEXIS 10833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-carter-nyappdiv-1999.

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