        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

645
CA 13-01505
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


SYLVIA F. BRYANT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIAM M. CARTY, DEFENDANT-APPELLANT.


DEGNAN LAW OFFICE, CANISTEO (EDWARD J. DEGNAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DAVIDSON FINK, LLP, ROCHESTER (DONALD A. WHITE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Allegany County
(Thomas P. Brown, A.J.), dated March 22, 2013 in a divorce action.
The order, among other things, denied defendant’s motion to vacate the
judgment of divorce.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part denying
defendant’s motion insofar as it sought to vacate the child support
provisions of the judgment of divorce and as modified the order is
affirmed without costs and the matter is remitted to Supreme Court,
Allegany County, for further proceedings in accordance with the
following Memorandum: We agree with defendant that Supreme Court
erred in denying that part of his motion seeking vacatur of the child
support provisions of the judgment of divorce without conducting a
hearing. It is well settled that, when a “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”
(Kellman v Kellman, 162 AD2d 958, 958). Thus, “[a] party seeking to
set aside an agreement must do so by commencement of a plenary action,
by affirmative defense or by counterclaim; such relief cannot be
obtained on motion” (Gaines v Gaines, 188 AD2d 1048, 1048).

     Here, however, the judgment of divorce specifically provided that
the child support provisions of the parties’ 2009 Property Settlement
and Separation Agreement (Agreement) merged with the judgment of
divorce. Although in his motion defendant sought vacatur of the
judgment of divorce in its entirety and a determination that the
Agreement was unenforceable, defendant conceded at oral argument
before this Court that he was seeking to challenge only the child
support provisions of the judgment. Inasmuch as the child support
provisions of the Agreement merged into the judgment of divorce, those
                                 -2-                           645
                                                         CA 13-01505

provisions of the Agreement “cease[d] to exist as a separately
enforceable contract” (Rainbow v Swisher, 72 NY2d 106, 109).
Defendant therefore was not required to commence a plenary action to
challenge those provisions but, rather, properly challenged those
provisions of the judgment by motion (see Vinokur v Penny Lane Owners
Corp., 269 AD2d 226, 226; cf. Kellman, 162 AD2d at 958).

     Contrary to plaintiff’s assertion, the doctrine of res judicata
does not bar defendant’s motion. Here, “the merits of [defendant’s]
contention that the [judgment] was procured through fraud have not
been previously litigated” (Van Wie v Van Wie, 124 AD2d 353, 354; see
generally Matter of Hunter, 4 NY3d 260, 269-270). We further agree
with defendant that he did not seek modification of his future child
support obligation but, rather, he sought to vacate the child support
provisions that merged with the judgment of divorce. We therefore
modify the order by vacating that part denying defendant’s motion
insofar as it sought to vacate the child support provisions that
merged with the judgment of divorce, and we remit the matter to
Supreme Court for a hearing on that part of defendant’s motion.




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
