Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J.), entered November 5, 2008 in a divorce action.
PRESENT: HURLBUTT, J.P., FAHEY, PERADOTTO, AND PINE, JJ.
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.
Plaintiff appeals from an order that granted defendant's motion to dismiss the complaint in this divorce action and denied plaintiff's 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, rearg denied 31 NY2d 805). 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 § 170 ), it neither purports to be a separation agreement as that term is generally understood (see § 236 [B] ), 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] satisfy[ ] the statutory requirement [with] respect to a separation agreement" (Christian v Christian, 42 NY2d 63, 70; see Sint v Sint, 225 AD2d 606).
All concur except PERADOTTO, J., who dissents and votes to reverse in accordance with the following Memorandum: I respectfully dissent and would reverse because I agree with plaintiff that the 30-page "Parenting Plan Agreement" (agreement) at issue in this matter constitutes a "written agreement of separation" within the meaning of Domestic Relations Law § 170 (6).
Plaintiff and defendant were married on May 8, 1993 and have three minor children. The parties have lived apart since March 2005. On March 4, 2005, plaintiff commenced an action for divorce by summons with notice. After extensive and ultimately futile negotiations between the parties, plaintiff filed a complaint on August 11, 2006 that did not specify any misconduct on the part of defendant but requested that plaintiff be awarded custody of the parties' children. On September 15, 2006, Supreme Court granted defendant's motion to dismiss the complaint based on the insufficiency of plaintiff's allegations but, as noted by the majority, "retained jurisdiction over ancillary issues."
Thereafter, the parties entered into the agreement, the preamble to which provides that "the parties are now desirous of resolving custody and ancillary issues without a trial." The agreement, inter alia, grants sole custody of the parties' children to defendant and establishes a detailed access schedule for plaintiff. It further provides that the agreement "shall be submitted to any court in which either [p]arty may seek a judgment or decree of divorce and . . . shall be incorporated in such judgment or decree by reference." The agreement was signed by both parties, notarized, and filed with the Erie County Clerk's Office on May 11, 2007.
On May 13, 2008, just over one year after the agreement was filed, plaintiff commenced this action for divorce based on Domestic Relations Law § 170 (6), alleging that the parties had lived separate and apart pursuant to an agreement for a period of a year or more. A copy of the agreement was attached to the complaint. Defendant moved to dismiss the complaint on the ground that the agreement was not a "written agreement of separation" within the meaning of section 170 (6) because it addressed only parenting issues, it did not expressly recite the parties' intent to live separate and apart, and it was not intended to serve as a separation agreement. Plaintiff cross-moved for summary judgment on the complaint, contending that the terms of the agreement clearly established that the parties were living separate and apart.
The court granted defendant's motion to dismiss the complaint and denied plaintiff's cross motion. Although the court acknowledged that an agreement need not be in any specific form to qualify as a "written agreement of separation" pursuant to Domestic Relations Law § 170 (6), the court determined that defendant did not consent to the termination of the marriage by signing the agreement.
Domestic Relations Law § 170 (6) sets forth one of the two "no- fault" grounds for divorce in New York State. Specifically, that section provides that an action for divorce may be maintained on the ground that "[t]he husband and wife have lived separate and apart pursuant to a written agreement of separation . . ., for a period of one or more years after the execution of such agreement" (id.). The section further provides that the agreement must be signed by the parties and "acknowledged or proved in the form required to entitle a deed ...