Tongue v. Tongue , 97 A.D.2d 638 ( 1983 )

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered September 16, 1982 in Schenectady County, upon a decision of the court at Trial Term (Cerrito, J.), without a jury. On December 10, 1979, plaintiff commenced an action in Schenectady County Supreme Court for absolute divorce against defendant husband on the ground of cruel and inhuman treatment. An answer containing a general denial was interposed on February 22, 1980. After a substitution of attorneys, defendant served an amended answer which, in addition to containing denials of plaintiff’s complaint allegations, set forth a counterclaim seeking an absolute divorce on the grounds of plaintiff’s adultery and cruel and inhuman treatment. Plaintiff served a reply denying the allegations of the counterclaim. When the matter was reached for trial on March 2,1982, the attorneys for the parties orally stipulated on the record that defendant would withdraw his amended answer and plaintiff would withdraw her reply to his counterclaim. The stipulation also contained an agreement with respect to marital property division¹ and attorney’s fees. In accordance with the stipulation, each party proceeded against the other for a divorce on grounds of cruel and inhuman treatment. On September 16, 1982, the trial court granted plaintiff a divorce from defendant.² The oral stipulation was incorporated into the judgment of divorce but did not merge therein. This appeal by defendant ensued. The appeal must be dismissed. CPLR 5511 only permits an “aggrieved” party to appeal a judgment or order. A judgment or order entered upon consent or default is not appealable (Matter ofPulver, 86 AD2d 705; Morse v Morse, 67 AD2d 750). Here, when the parties agreed that defendant’s answer and plaintiff’s reply would be withdrawn and that each party would seek a divorce against the other, the only issue left was which of the parties would obtain that which both wanted. Each party, by withdrawing the instrument that created triable issues of fact, consented to a judgment entered on default. While defendant is correct in his argument that a judgment of divorce may not be entered upon default or consent (Domestic Relations Law, § 211; General Obligations Law, § 5-311), such principle does not make the judgment itself appealable. If defendant now feels that there are grounds upon which to attack the judgment in plaintiff’s favor, the proper procedure is by application to vacate the judgment of divorce and to appeal the resulting order if the motion is denied. Appeal dismissed, without costs. Mahoney, P. J., Sweeney, Kane and Yesawich, Jr., JJ., concur.

1 . This case predated the Equitable Distribution Law (Domestic Relations Law, § 236).

2 . Although it appears from the record that Trial Term found for each party on their divorce actions, apparently only plaintiff submitted a divorce decree for entry.