Majority
p. 741Rodger Milteer, Respondent, v. Marie Milteer, Appellant.
Appeal by defendant from a judgment of the Supreme Court, Queens County, entered March 27,1973, which, after a nonjury trial, granted plaintiff a divorce. Judgment reversed, on the law and the facts, with costs, and complaint dismissed.
p. 742
In our opinion, plaintiff should not have been granted a divorce merely upon the allegation and proof that the parties had been living apart for more than one year after the entry of a prior judgment of separation. The statute requires that plaintiff submit satisfactory proof that he has “ substantially performed ” all of his obligations fixed in the prior judgment (Domestic Relations Law, § 170, subd. [5]). At bar, there was a lack of proof of substantial compliance. Munder, Acting P. J., Martuscello, Shapiro, Brennan and Benjamin, JJ., concur.