MacDonald v. MacDonald

73 A.D.2d 958, 424 N.Y.S.2d 268, 1980 N.Y. App. Div. LEXIS 9889

Opinion

— In a matrimonial action in which, inter alia, the plaintiff wife was granted a divorce, defendant appeals from so much of an order of the Supreme Court, Richmond County, dated July 20, 1979, as denied defendant’s motion to modify the provisions of the judgment of divorce and in part granted plaintiffs cross motion. Order affirmed insofar as appealed from, with costs. Defendant husband, inter alia, sought to modify that portion of a 1975 judgment of divorce which stated that a stipulation between the parties would be incorporated but not merged in the judgment. He based his argument on the fact that the stipulation itself contained no provision for survival. Defendant could have made an attack on that provision of the judgment of divorce had he appealed therefrom (see Nicoletti v Nicoletti, 43 AD2d 699). Having failed to appeal, he is bound by the provisions of the judgment of divorce including the provision for survival of the stipulation (see Goldman v Goldman, 69 AD2d 758; Chanin v Chanin, 59 AD2d 671). Mangano, J. P., Rabin, Gulotta and Margett, JJ., concur.