Scully v. Haar

Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J.), entered November 5, 2008 in a divorce action. The order granted the motion of defendant to dismiss the complaint and denied the cross motion of plaintiff for summary judgment.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff appeals from an order that granted defendant’s motion to dismiss the complaint in this divorce action and denied plaintiffs cross motion for summary judgment seeking a divorce pursuant to Domestic Relations Law § 170 (6). We affirm. “No-fault divorce applies only where there is a previous decree of separation or a written separation agreement, as required by statute [and, here, t]he parties have neither” (Schine v Schine, 31 NY2d 113, 116 [1972], rearg denied 31 NY2d 805 [1972]). Plaintiff relies on a “Parenting Plan Agreement” (agreement) executed by the parties after an earlier divorce action commenced by plaintiff was dismissed and the court in that action retained jurisdiction over ancillary issues. The agreement relates solely to matters of custody and visitation and, although it was signed and acknowledged by the parties and filed with the County Clerk by plaintiff (see Domestic Relations Law § 170 [6]), it neither purports to be a separation agreement as that term is generally understood (see § 236 [B] [3]), nor makes any explicit reference to the parties’ separation. We conclude, particularly in light of the circumstances in which the agreement was made, that it does not “evidenc[e] the parties’ agreement to live separate and apart, [and] thus [it does not] satisfyf ] the statutory requirement [with] respect to a separation agreement” (Christian v Christian, 42 NY2d 63, 70 [1977]; see Sint v Sint, 225 AD2d 606 [1996]).

All concur except Peradotto, J., who dissents and votes to reverse in accordance with the following memorandum: