Keck v. Keck

Appellate Division of the Supreme Court of the State of New York

Apr 2, 2001

Versions:282 A.D.2d 436

722 N.Y.S.2d 410

—In a matrimonial action in which the parties were divorced by judgment dated May 3, 1993, and an ac tion for a judgment declaring that the parties’ separation agreement was modified, the former husband appeals from an order of the Supreme Court, Suffolk County (Lifson, J.), dated November 23, 1999, which denied his motion to enjoin the settlement of a Qualified Domestic Relations Order, and granted that branch of the cross motion of the former wife which was to dismiss the complaint in the declaratory judgment action.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment in the declaratory judgment action declaring that the parties’ separation agreement was not modified by a memorandum dated November 5, 1994.

The Supreme Court properly declined to enforce the purported modification of the parties’ separation agreement. The separation agreement provided that it could be modified only “by an agreement in writing, identifying each particular provision * * * modified and duly subscribed and acknowledged by both parties with the same formality as this Agreement.” The alleged modification did not comply with the requirements of the separation agreement and, therefore, was not enforceable (see, LoGatto v LoGatto, 130 AD2d 556; cf., Lotz v Lotz, 135 AD2d 1007).

The appellant’s remaining contentions are without merit.

We note that a judgment should be entered granting declaratory relief in favor of the respondent in the declaratory judgment action (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). Santucci, J. P., Altman, Florio and Luciano, JJ., concur.