The opinion
Staff, J.
(Dissenting)
Although I agree with much of my brother’s scholarly Opinion, I respectfully dissent on a point which ultimately causes me to come to a contrary conclusion.
The point is the effect to be given to language of the Probate Court decree which stated that the “said stipulation is to be incorporated and merged into the Probate decree and shall not survive as a separate agreement.”
The majority Opinion points out that judicial review of separation agreements should be exercised in a manner so as to give effect wherever possible to a separation agreement entered into between the parties where there is full disclosure, an absence of inequitable conduct, and the agreement seems to protect the interest in which the state is concerned. Knox v. Remick, 371 Mass. 433 (1976).
The Probate Court judge in this case approved the agreement to the extent that it incorporated its terms in the decree but then took a step beyond that and merged the agreement into the decree.
When used in this sense, the word “merged” is one of legal art and is further explained as follows: “If the existence or extent of a contractual duty, either primary or secondary, is in issue in a court having jurisdiction, a final judgment by which that issue is determined extinguishes the duty, whether the duty is confirmed and enforced or is denied and enforcement refused. The issue is described as res judicata and the legal relations of the parties are now determined by the judgment, not by the terms of the antecedent contract and the performances thereunder, the existence and legal operation of which were in issue.” 6 CORBIN ON CONTRACTS § 1318 (1962). An apposite expression in the verancular is “You cannot have your cake and eat it too.”
At this point we are unaware of any reasons the Probate Court judge had in using the explicit terms that “the [agreement] ... is to be ... merged into the Probate decree and shall not survive as an independent agreement, ’ ’ but we cannot assume that this language was used without reason. While the parties should be free to enter into whatever bargain they wish as to the division of property, the subject of the payment of support and alimony is clearly a matter of continuing interest to the estate. Surabian v. Surabian, 362 Mass. 342 (1972).
I see no basis for permitting a collateral attack on the judgment of the Probate Court on *76 the ground that the Court was acting outside its jurisdiction in merging the agreement into the judgment.
The question raised by the Motion to Dismiss is one of subject matter jurisdiction and may be raised at any stage of the proceedings. Bergeron v. Bergeron, 287 Mass. 524, 526 (1934).
For this reason I would reverse the ruling of the trial court and order that the complaint be dismissed. In coming to this conclusion, 1 have considered the language of General Laws, Chapter 208, Section 1A which deals with “no fault” divorces and which seems to provide that the separation agreement entered into thereunder is merged into the judgment, but by agreement of the parties may continue in existence as a separate instrument. The apparent anomaly in the conflict of terms may be best dealt with in another case; in the divorce case here the cause of divorce was cruel and abusive treatment.
As to the question of the propriety of the judge’s action in provisionally allowing defendant’s Motion to Remove Default, it would seem to me that the defendant should not be required to renew his objection to the ruling at the time his motion is filed. Dist./Mun.Cts.R.Civ.P.Rule 12.
Dist./Mun. Cts. R. Civ. P., Rule 64 provides that a request for a report should be filed within ten (10) days after entry of Judgment, and it is only as to rulings on the admission or exclusion of evidence that a written request for a report must be made within five days after the hearing of the evidence. The defendant in fact is not entitled to request a report on the interlocutory ruling on the Motion to Remove Default until final judgment is entered. Pollack v. Kelly, 372 Mass. 469 (1977).