Kellman v. Kellman

162 A.D.2d 958

Opinion

Order unanimously affirmed with costs. Memorandum: Defendant appeals from two orders of Supreme Court that denied her motion to vacate a default judgment of divorce in favor of plaintiff, and denied her motion for ancillary relief, including temporary maintenance, custody and continued health insurance coverage. The motions were properly denied. Defendant does not challenge the propriety of the default divorce, but contends that the separation agreement is unfair. Where, as here, the separation agreement is incorporated but not merged into the divorce judgment, vacatur of the divorce judgment has no effect on the enforceability of the agreement; , the agreement survives as a separate and enforceable contract. Defendant is relegated to a plenary action to rescind or reform the agreement under principles of equity (see, e.g., Lambert v Lambert, 142 AD2d 557, 558; Mastrogiacomo v Mastrogiacomo, 133 AD2d 671; Culp v Culp, 117 AD2d 700, 701; see generally, Christian v Christian, 42 NY2d 63).

As a corollary, it was proper for the court to deny defen dant’s request for ancillary relief and to defer those requests to Family Court. That result is mandated by the judgment of divorce and the separation agreement. (Appeal from order of Supreme Court, Onondaga County, Reagan, J.—vacate default divorce.) Present—Dillon, P. J., Denman, Pine, Lawton and Davis, JJ.