Youngkrans v. Youngkrans ( 1997 )

—Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings. Memorandum: Although the parties consented to a divorce based upon the verified complaint and defendant withdrew his answer, Supreme Court erred in awarding plaintiff a judgment of divorce on the ground of cruel and inhuman treatment. A judgment of divorce may be entered on consent “only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment” (Domestic Relations Law § 211). There was no oral proof in this case, nor any written proof other than the verified complaint. While CPLR 105 (u) permits the use of a verified pleading as an affidavit, the verified complaint here lacks the necessary evidentiary detail (see, Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § C211:6, at 751; cf., Kellerman v Kellerman, 187 AD2d 906, 907).

Because the divorce was improperly granted, the marital property is not subject to equitable distribution (see, Domestic Relations Law § 236 [B] [5] [a]-; Gulisano v Gulisano, 214 AD2d 999; Marciano v Marciano, 161 AD2d 1163, lv denied 76 NY2d 707). In any event, any agreement between the parties concerning the distribution of marital property and maintenance did not comply with Domestic Relations Law § 236 (B) (3) and is thus invalid (see, Sorge v Sorge, 238 AD2d 890; James v James, 202 AD2d 1006; Hanford v Hanford, 91 AD2d 829; see also, Matisoff v Dobi, 90 NY2d 127). (Appeal from Judgment of Supreme Court, Oneida County, Tenney, J.—Divorce.) Present—Pine, J. P., Lawton, Hayes, Wisner and Boehm, JJ.