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Youngkrans v. Youngkrans

245 A.D.2d 1142 Court N.Y. App. Div. Decision date 1997-12-31 English

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p. 1142
Jeanne S. Youngkrans, Respondent, v David C. Youngkrans, Appellant.
[667 NYS2d 540]

—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

p. 1143
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.

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