Roth v. Roth

115 A.D.2d 975, 497 N.Y.S.2d 792, 1985 N.Y. App. Div. LEXIS 55360

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1985
• Status: Published

Opinion

Order unanimously modified, on the law, without costs, and, as modified, affirmed, and matter remitted to Supreme Court, Livingston County, for further proceedings, in accordance with the following memorandum: In this action for divorce, plaintiff wife claims that marital property exists which was not covered by the parties’ separation agreement, entered into on August 1980, and is therefore subject to equitable distribution. The trial court erred in holding that the separation agreement in this divorce action adjusted all economic issues, since the agreement contains no language purporting to resolve completely the parties’ property rights (see, Domestic Relations Law § 236 [B] [3], [5] [a]). The intention of the parties when they entered into the separation agreement is controlling. The second ordering paragraph, therefore, is stricken and on remittal the trial court should hold a hearing to determine whether the separation agreement resolves all property rights of the parties pursuant to Domestic Relations Law § 236 (B) (3), (5) (a) (cf. Forcucci v Forcucci, 83 AD2d 169). Plaintiff’s argument that jointly owned real property acquired after execution of the separation agreement should be treated as marital property subject to equitable distribution is without merit, since the separation agreement cuts off acquisition of marital property (Domestic Relations Law § 236 [B] [1] [c]). We have examined plaintiff’s remaining arguments and find them to be without merit. (Appeal from order of Supreme Court, Livingston County, Houston, J.—divorce.) Present—Dillon, P. J., Doerr, Green, O’Donnell and Pine, JJ.