A judgmеnt of divorce entered by a court with subject matter and personal jurisdiction is not, in the circumstances presented, open to later collateral attack on the ground that the judgment erroneously failed to embody the terms of the parties’ settlement agreement regarding mеrger of the agreement into the decree. Given the nature of the alleged error and the parties’ long reliance on the judgment, defendant husband cannot now challenge its accuracy.
After 23 years of marriage and six children, plaintiff began an action in Supreme Court for divorce, which was contested by defendant. Before trial actually commenced, on May 3, 1978 the parties — both represented by counsel — signed a stipulation of settlement, whereby defendant withdrew his answer and agreed to allow plaintiff to obtain a judgment of divorce. The agreemеnt settled the rights of the parties with respect to child custody, visitation, child support, alimony, property division and other economic incidents of the marriage, including health and life insurance. The final paragraph provided that it "shall be submitted to the Justice presiding at the matrimonial аction part and that such Stipulation and Agreement shall become incorporated into and shall merge into any Judgment of Divorce grantеd to the parties herein.” Nevertheless, the judgment of divorce issued by Supreme Court some five weeks later provided, in one of its decretаl paragraphs, "that the terms of the written stipulation of settlement, dated May 3, 1978, relating to custody, visitation, support and alimony, and signed by the parties shall be incorporated, but shall not merge, in this decree.” Neither party made any objection to the judgment or took an appeal. Indeed, in subsequent proceedings against each other in New York and in Connecticut, both parties relied on the judgment without questioning its validity or accuracy.
In 1983, plaintiff commenced the present breach of contract action to recover arrears in child support and alimony due under the settlement agreement. Defendant’s answer, dated February 1984, contained denials and affirmative defenses, but in no way disputed thе judgment itself. Two years later, in response to plaintiffs amended complaint claiming additional arrears through February 1986, defendant for the first time asserted, as an affirmative defense, that the intent of the parties, as expressed in the stipulation of settlement, was to
The settlement agreement upon which the present action is based states that it was to merge into any judgment of divorcе later granted to these parties. If merged, the agreement would cease to exist as a separately enforceable contract (see, McMains v McMains,
Supreme Court apparently viewed the merger issue as one of fact. The court found, after trial, that there was "insufficient evidence” to warrant a finding that it was the parties’ intent tо merge the settlement agreement into any subsequent judgment of divorce. Plaintiff urges that this finding, affirmed by the Appellate Division and supported by the record, alone compels affirmance (see, Humphrey v State of New York,
In general, a final judgment of divorce issued by a court having both subject matter and personal jurisdiction has the effect of determining the rights of the parties with respect to every material issue that was actually litigated or might have been litigated (see, Schuylkill Fuel Corp. v Nieberg Realty Corp.,
Applying these general principles, defendant’s failurе to seek modification of, or to appeal, the judgment of divorce bound him to its terms, including the provision for survival of the settlement agreement (MacDonald v MacDonald,
Finally, the circumstances of this case preclude a contrary conclusion. To rewrite a judgment of divorce which has been relied on by both parties for 10 years would defeat the
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.
Order affirmed, with costs.