Chapter 33 PLENARY ACTIONS

JurisdictionNew York

Chapter Thirty-Three

Plenary Actions

I. Action and Order to Show Cause Distinguished

Understanding the distinction between the procedural mechanisms of an action and an order to show cause is critical to the comprehension of the enforcement of and challenges to agreements that have been incorporated by reference into a judgment of divorce but that have not merged therein. Actions and special proceedings are independent applications to a court for relief and must be instituted by service of a summons or notice of petition,5624 thus acquiring jurisdiction over the person of the defendant or respondent (CPLR 103(b), 105(d), 304); a motion is an application for an order (CPLR 2211) and, generally speaking, seeks relief incidental to the primary relief sought in an action or a special proceeding—while a motion terminates in an order granting or denying the relief requested in whole or in part, an action and special proceeding both terminate in a judgment (CPLR 411, 5011).5625 A motion is neither an action nor a special proceeding but a procedural step connected with and dependent upon the remedy invoked in the particular controversy.5626 A motion must be addressed to a pending matter.5627 In In re Jetter,5628 the Court of Appeals explained the distinction:

A motion "in general relates to some incidental question collateral to the main object of the action." A motion is not a remedy in the sense of the Code, but it is based upon some remedy, and is always connected with and dependent upon the principal remedy. It is to furnish relief in the progress of the action or proceeding in which it is made, and generally relates to matters of procedure, although it may be used to secure some right in consequence of the determination of the principal remedy.

II. Incorporated and Unmerged Agreements

Incorporation of an agreement into a judgment creates an unequivocal mandate to comply with the terms and provisions set forth therein.5629 A separation agreement that is incorporated into but not merged with a divorce decree is an independent contract binding on the parties5630 unless impeached or challenged for some cause recognized by law.5631 It is well settled that parties' obligations as defined by their separation agreement, which is an independent contract, must be construed in accordance with the principles of contract interpretation.5632 When there is conflict between the terms of a separation agreement and the provisions of the divorce judgment, the party seeking to enforce the agreement must first obtain judicial permission either to modify the judgment or to obtain a modification nunc pro tunc; nevertheless, the motion court could not, by ordering the payment of arrears under the divorce judgment, impair the defendant's existing contractual rights.5633

While it is preferable to include the specific words "[the agreement is] incorporated by reference" in a divorce judgment, the mere absence of those words is not determinative because a court may look at the intention of the parties5634 which can be corrected by way of resettlement of the judgment.5635 The Second Department added that to the limited extent that some of its prior decisions might be interpreted as reaching a contrary result under similar facts, "they should not be so interpreted."5636

Davis-Taylor v. Davis-Taylor5637 held that although the stipulation was not expressly incorporated into a divorce judgment, resettlement of the judgment to achieve incorporation of the agreement is permissible if "the parties' unequivocal intent" was that such incorporation occur. The parties in Davis-Taylor agreed to execute a written stipulation which would be incorporated, but not merged, into the divorce judgment; however, no written stipulation existed and no similar agreement was reached with respect to the oral stipulation. Inasmuch as the stipulation was not expressly incorporated and the parties' intent remains unclear, the Appellate Division could not say that the plaintiff was entitled to have the stipulation incorporated, but not merged, into the divorce judgment.

III. Agreements That Are Merged Into the Judgment of Divorce and Agreements That Survive the Judgment of Divorce

Case law distinguishes between modification of a separation agreement and that of a divorce decree. A separation agreement that is incorporated into but not merged with a divorce decree is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law. Indeed, courts of this [s]tate enjoy only limited authority to disturb the terms of a separation agreement.5638

Where a separation agreement is incorporated but not merged into the divorce judgment, it is said to have survived the judgment, for which reason vacatur of the divorce judgment has no effect on the enforceability of the agreement; the agreement survives as a separate and enforceable contract and a plenary action is required to rescind or reform the agreement under principles of equity.5639 Modification of such a judgment cannot modify a party's rights under the contract.5640

Obligations and liabilities in an agreement that have not survived the judgment of divorce but rather have merged into the judgment will be directly modified in accordance with any subsequent judicial modification of the judgment. However, once an agreement has survived the judgment and a court has judicially modified that judgment, the party seeking to enforce the contract may recover the difference between the contractual amount and the judicially modified amount.5641 Otherwise stated, where provisions of an agreement have merged with the judgment of divorce, those provisions of the agreement cease to exist as a separately enforceable contract and thus do not require a plenary action to challenge them; rather the merged provisions may be properly challenged by motion against the judgment.5642

A court may not impair a party's contractual rights under the agreement by modifying the divorce judgment, except as set forth in N.Y. Domestic Relations Law § 236B(9)(b) (DRL) and in decisional authority with respect to upward modification of contractual child support.5643 In McMains v. McMains,5644 the Court of Appeals held, "Parallel and congruent are these rules: first, that support agreements converted into divorce judgments are valid and binding until set aside for ab initio invalidity; second, that subsequent decree modifications leave the prior nonmerged support contract still in existence qua contract."

An analysis of challenges to, and enforceability of, unmerged agreements immediately follows.

IV. Challenges to And Enforceability of Agreements That Are Incorporated Into But Not Merged Into Judgments of Divorce Have Traditionally Required a Plenary Action

When a party submits evidence in support of an application for enforcement of a separation agreement and the opposing party fails to raise any question of fact regarding the obligations or lack of compliance therewith, no hearing is required prior to the issuance of an order enforcing the separation agreement.5645

It is well settled that a party to a stipulation that is incorporated but not merged into a judgment of divorce cannot challenge the enforceability of the stipulation by way of motion but rather must do so by commencement of a plenary action. Conversely, a party seeking to enforce the terms of such a stipulation may do so either by a motion to enforce the judgment or by a plenary action.5646

The settlement agreement, in Matula v. Matula,5647 was incorporated but not merged into the judgment of divorce. The husband, nevertheless, moved postjudgment to invalidate the agreement. Inasmuch as the proper vehicle for challenging the propriety of the support provisions contained in that agreement was a separate plenary action, the Appellate Division affirmed the denial of the husband's postjudgment motion. In order to enforce the terms of an unmerged stipulation, either party can bring a separate plenary action after the divorce judgment.5648

In Alton v. Alton,5649 the defendant sought, by motion, to set aside the provisions of the parties' oral on-the-record stipulation of settlement relating to the issues emanating from their marriage—specifically, the validity of the parties' prenuptial agreement and his obligation to purchase an apartment for the plaintiff. He asserted that there had been no meeting of the minds5650 on the essential material term regarding the purchase price. However, since a judgment had been entered that incorporated the terms of the settlement, the defendant was precluded from challenging the validity or enforceability of the settlement by way of motion but was required either to appeal from the judgment or commence a plenary action. The Appellate Division ruled on the merits: "Since the defendant appealed from the judgment, we reach the merits of the defendant's contention that no stipulation of settlement had, in fact, been consummated."

In Sacks v. Sacks,5651 the Appellate Division rejected the argument that the former husband's plenary action to vacate certain portions of the agreement were impermissible under res judicata or collateral estoppel or because he failed to appeal from the judgment of divorce or a subsequent qualified domestic relations order (QDRO). The Second Department held that survival of a contract means that either party can bring a separate plenary action after the divorce judgment in order to enforce or challenge the terms of a settlement.

The stipulation of settlement in Fodrowski v. Fodrowski,5652 provided that the plaintiff was to be the sole beneficiary of the survivor's benefits of the defendant's pension. "The stipulation also provided that the failure by either party to exercise any rights thereunder shall not 'constitute a waiver of such rights in the future,' and that each party would 'execute all documents necessary to accomplish the provisions of this agreement.' " The plaintiff's rights could have...

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