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Schmidt v. Schmidt

Collateral Estoppel Bars Vacatur of Divorce Judgment, Setting Aside Stipulation

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DECISION AND ORDER

*1 The marriage of plaintiff Robert C. Schmidt and defendant Deborah A. Schmidt was dissolved by Judgment of Divorce dated June 18, 2014 and entered on June 23, 2014, which Judgment incorporated and did not merge an oral stipulation of settlement dated May 16, 2014. Presently before the Court is defendant’s motion by Order to Show Cause seeking to set aside the stipulation of settlement and vacate the Judgment of Divorce. Turning first to a procedural issue, “[a] challenge to a stipulation of settlement which is incorporated but not merged into a judgment of divorce must be made by plenary action, and not by motion” (Makara v. Makara, 65 AD3d 1018, 1019 [2009]; see Candela v. Kiel, 33 AD3d 833, 834 [2006]; Spataro v. Spataro, 268 AD2d 467, 468 [2000]; Matter of Scalabrini v. Scalabrini, 242 AD2d 725, 726 [1997]). Here, defendant has obviously failed to file a plenary action. With that said, however, “‘a court’s alteration of a stipulation absent a plenary action is not fatal’” where the non-moving party fails to object and this Court observes that plaintiff has not objected to defendant filing a motion to challenge the stipulation of settlement, as opposed to a plenary action. As such, the defect is overlooked by the Court (see CPLR 2001; Fermon v. Fermon, 135 AD3d 1045, 1048 [2016]; MacDonald v. Guttman, 72 AD3d 1452, 1455 [2010]; Banker v. Banker, 56 AD3d 1105, 1107 n 2 [2008]).

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