Prior to commencement of an action for divorce, the parties entered an agreement for the division of their property that expressly provided that the agreement would not be modified by or merged into any divorce judgment. The agreement was challenged by the husband and upheld. The wife was later granted her counterclaim for divorce.
Prior to commencement of an action for divorce, the parties entered an agreement for the division of their property that expressly provided that the agreement would not be modified by or merged into any divorce judgment. The agreement was challenged by the husband and upheld. The wife was later granted her counterclaim for divorce. The divorce judgment ordered that the agreement would survive and not be merged. The husband subsequently filed a motion for resettlement of the divorce, contending the wife conceded that the agreement would be merged. The Supreme Court granted the husband the relief requested. Wife appealed a judgment from the Supreme Court in Nassau County, which directed that an agreement she had with husband be merged into their divorce judgment and that the agreement should not survive the divorce judgment. She also appealed the Supreme Court’s denial of her motion to further resettle the divorce judgment.
Issue:
The Court states that the plaintiff is directed to submit an amended judgment reflecting this decision and the prior judgment. A resettled judgment of divorce was entered upon the order on August 24, 1987, stating, inter alia, that the agreement "shall be merged herein and shall be extinguished so that the same shall not survive." This Court finds that the Supreme Court erred in resettling the judgment of divorce. A review of the trial transcript reveals that the defendant's attorney obviously erred in asking the plaintiff's attorney to "concede" that the agreement be "merged" into the judgment of divorce, and that the intent of the parties when executing the agreement was that it survives a judgment of divorce. This is evidenced by the fact that the agreement itself requires that it be presented as evidence at any divorce proceeding and requires that it be incorporated by reference and not merged into any judgment of divorce. The fact that the word "merged" was used instead of "incorporated" was even overlooked by the Trial Judge, who signed the original judgment of divorce, which incorporated the agreement. Thus, equity should be invoked here, as the result of the merger without the express incorporation of the provisions of the agreement into the judgment would be unconscionable. Such a result would be inconsistent with the clear intention of the parties as set forth in the unambiguous terms of the agreement, which was adjudicated to be a valid and enforceable contract by the order of the Supreme Court, Nassau County, dated May 21, 1986. The defendant would lose valuable property rights in the marital residence when it is clear she has complied with all her obligations under the agreement, including the forfeiture of all maintenance from the date of the agreement.
In this case, the mistake of the defendant's attorney in saying "merged" when he meant to say "incorporated" was so blatant that the plaintiff's attempt to gain an unfair advantage by reason of the one misspoken word is tantamount to "an evasion of a contract; not its fulfillment and will not be countenanced by this court.
Conclusion:
The court dismissed the appeal of the denial of the wife's motion to further resettle the divorce judgment. The court vacated the resettled divorce judgment and reinstated the original divorce judgment.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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