Stone v. Stone

Robert P. Kennedy, J.

Plaintiff brought action for divorce under subdivision (6) of section 170 of the Domestic Relations Law. She and defendant had lived separate and apart pursuant to a separation agreement dated and filed in the Ontario County Clerk’s office November 17, 1972. Satisfactory proof was offered that she has substantially performed all of the terms and conditions of the agreement.

The only issue raised is what effect, if any, does the fact that the parties modified the original agreement by an agreement dated June 11,1974 and failed to file this latter agreement in the County Clerk’s office have on her action based on the execution and filing of the original agreement?

We start with the proposition that a separation agreement is a contract. In Sinno v. Sinno ( 174 Misc. 869 ), the court in referring to a separation agreement said, ‘ ‘ The court will give it the force and legal effect which any contract is to be given. The fact that the contract has been entered into between persons who are closely related because of a marriage, seems to me to clothe the contract with greater solemnity than an ordinary contract involving a business transaction.”

The separation agreement being a contract is, therefore, subject to contract law. One such states that the effect of a modification of a contract is the production of a new contract (Walker v. Millard, 29 N. Y. 375 ). The new contract, however, consists not only of the new terms agreed upon but of as many of the terms of the original contract as the parties have not abrogated by their modification (Millet v. Slocum, 4 A D 2d 528, affd. 5 N Y 2d 734).

The modified agreement entered into between the parties here related only to financial and property matters and left standing the other provisions of the original agreement. Since *790 this could have been accomplished without the formality of a modification agreement (Yourth v. Boggs, 33 A D 2d 549) and, further, since the purpose of the filing provision with respect to separation agreements clearly is to evidence the fact that the agreement was made before the maintenance of the divorce action (Martin v. Martin, 63 Misc 2d 530 ), I hold that the provisions of subdivision (6) of section 170 of the Domestic Relations Law were complied with by the filing of the original separation agreement and were not nullified by the subsequent, unfiled modification agreement.