SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1258 

CA 13-00812 

PRESENT: CENTRA, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.

 

KAREN M. MARSHALL, PLAINTIFF-RESPONDENT, 

 

V MEMORANDUM AND ORDER

DANIEL R. MARSHALL, DEFENDANT-APPELLANT.

 

COHEN & LOMBARDO, P.C., BUFFALO (MICHELLE SCHWACH MIECZNIKOWSKI OF

COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES P. RENDA, BUFFALO, FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Henry J.

Nowak, Jr., J.), entered April 3, 2013 in a divorce action. The

order, inter alia, denied the motion of defendant to vacate a judgment

of divorce. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting defendant’s motion in part

and vacating those parts of the judgment of divorce that distributed

the parties’ assets and as modified the order is affirmed without

costs and the matter is remitted to Supreme Court, Erie County, for

further proceedings in accordance with the following Memorandum: 

Defendant appeals from an order that, inter alia, denied his motion to

vacate the parties’ judgment of divorce. After plaintiff commenced

this action for divorce, plaintiff’s attorney placed an oral

stipulation of settlement on the record before the Matrimonial Referee

regarding, inter alia, distribution of the parties’ marital assets. 

According to plaintiff’s attorney, the parties were awaiting a report

from an individual whom the parties had agreed upon to propose a

resolution for valuing and distributing the parties’ various

retirement accounts. If the parties agreed with the proposed

resolution, they would submit an addendum to the stipulation. 

Plaintiff’s attorney further stated that, in exchange for plaintiff’s

agreement to waive her interest in defendant’s enhanced earning

capacity (see generally O’Brien v O’Brien, 66 NY2d 576, 584), the

parties had agreed that defendant would transfer his title and

interest in the marital residence to plaintiff. In addition,

plaintiff’s attorney stated that defendant would continue to make

payments on a home equity loan.

Defendant’s attorney agreed with the stipulation as recited by

plaintiff’s attorney, but defendant’s attorney noted that there were

“three issues” that remained to be resolved, the resolution of which

were dependent upon the recommended valuation and distribution of the
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CA 13-00812 

parties’ retirement accounts in the forthcoming report. First,

although defendant agreed to the valuation and allocation of the

marital residence, defendant did not “fully” agree with the offset due

to plaintiff’s waiver of her interest in his enhanced earning

capacity. Second, defendant’s attorney stated that, although

defendant would continue to make payments on the home equity loan,

that loan was “tied into the value of the house,” which the parties

agreed upon “in theory” but were waiting to finalize until they saw

the report’s recommendation. Third, the parties had to come to an

agreement regarding the allocation of their pension and retirement

accounts after reviewing the report. Plaintiff’s attorney agreed

that, if the parties were unable to reach an agreement on those issues

after reviewing the report, they would return to the Matrimonial

Referee, who would hear and determine those issues. The parties

executed a written ratification and adoption of the oral stipulation

in accordance with Domestic Relations Law § 236 (B) (3).

With that understanding, defendant withdrew his appearance on the

record and allowed plaintiff to proceed in the divorce action in a

default posture. The attorneys for the parties received the report

with a proposal for a distribution of the parties’ retirement accounts

in January 2011, and a judgment of divorce was entered on June 29,

2011. The judgment noted that defendant had “waived his right to

[a]nswer” and had allowed plaintiff “to proceed with her cause of

action for divorce by Default.” The parties’ stipulation was

incorporated but not merged into the judgment of divorce. In

addition, the judgment required that a separate Qualified Domestic

Relations Order distributing the parties’ retirement accounts be

submitted to the court. The judgment made no mention of the issues of

the home equity loan or defendant’s enhanced earning capacity. 

Within a year of the entry of the judgment, defendant moved to

vacate the judgment of divorce pursuant to CPLR 5015 (a) (1). 

Defendant averred that he told his attorney that he adamantly

disagreed with the report’s proposed distribution of the parties’

retirement accounts and that he did not wish to finalize the

proceedings on those terms. He further averred that he was unable to

contact his former attorney after that meeting, and that, once he

learned that a judgment of divorce had been filed, he hired new

counsel. Defendant contended that the distribution of his enhanced

earning capacity, the home equity loan, and the parties’ retirement

accounts remained unresolved. Plaintiff opposed defendant’s motion

and cross-moved for an order directing, inter alia, that defendant

transfer title of the marital residence to her and contribute

financially to their child’s college education pursuant to the terms

of the stipulation. Supreme Court denied defendant’s motion to vacate

the judgment of divorce and granted plaintiff’s cross motion in part.

We note at the outset that defendant has not contended in his

brief that the court erred in granting plaintiff’s cross motion in

part, and we therefore deem that issue abandoned (see Ciesinski v Town

of Aurora, 202 AD2d 984, 984). We reject plaintiff’s contention that

defendant could not move to vacate the judgment based on excusable

default pursuant to CPLR 5015 (a) (1) because he appeared and then
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CA 13-00812 

withdrew his appearance on the record. Regardless of the fact that

defendant appeared initially, the judgment was entered upon

defendant’s default. Defendant therefore could not appeal from the

judgment of divorce (see CPLR 5511) and, indeed, his only remedy was

to move to vacate the judgment of divorce pursuant to CPLR 5015 (a)

(1) (see Tongue v Tongue, 97 AD2d 638, 638-639, affd 61 NY2d 809; see

also Higgins v Higgins, 158 AD2d 782, 782-783).

We conclude that defendant demonstrated both a reasonable excuse

for the default and a meritorious defense (see Bird v Bird, 77 AD3d

1382, 1382-1383), and that he is entitled to vacatur of those parts of

the judgment of divorce distributing the parties’ assets (see

Gorzalkowski v Gorzalkowski, 190 AD2d 1067, 1067; Diachuk v Diachuk,

117 AD2d 985, 985-986), the only parts of the judgment challenged by

defendant on appeal (see Ciesinksi, 202 AD2d at 984). Defendant

averred that he informed his attorney that he disagreed with the

proposed resolution of the parties’ retirement accounts and did not

want to finalize the judgment on those terms, but that he was

subsequently unable to contact his attorney, and a default judgment of

divorce was entered without his knowledge. Furthermore, the judgment

of divorce failed to resolve the outstanding issues regarding

distribution of the retirement accounts, the home equity loan, and

defendant’s enhanced earning capacity, which issues the parties

expressly acknowledged remained to be resolved and were dependent

upon, at least in part, the forthcoming report.

We therefore modify the order accordingly, and we remit the

matter to Supreme Court for a hearing to resolve the disputed issues

regarding distribution of the parties’ retirement accounts, the home

equity loan and defendant’s enhanced earning capacity (see

Gorzalkowski, 190 AD2d at 1067). We do not address the merits of

defendant’s further contentions that the stipulation itself is

unenforceable. Inasmuch as the stipulation was incorporated but not

merged into the judgment of divorce, defendant cannot challenge the

stipulation by way of motion but, rather, must do so by commencement

of a plenary action (see Brody v Brody, 82 AD3d 812, 812; Zavaglia v

Zavaglia, 234 AD2d 1010, 1010; Kellman v Kellman, 162 AD2d 958, 958). 

Thus, our decision does not modify or vacate the parties’ oral

stipulation but, rather, enforces the terms of the stipulation.

Entered: January 2, 2015 Frances E. Cafarell

Clerk of the Court