A MODIFIED SEPARATION AGAREEMENT

The safer practice is to have the modification acknowledged. Standard provision I have utilized states "Neither this Agreement nor any provision hereof, including this Article, shall be amended, waived or modified or deemed amended, waived or modified, except by an agreement in writing duly subscribed and acknowledged with the same formality as this Agreement, except as expressly provided herein." In the decision below, they do not state whether the agreement contained such language.

Schaff v Schaff, 2019 NY Slip Op 04215, Decided on May 29, 2019, Appellate Division, Second Department:

"The plaintiff and the defendant are the parents of three adult children. In 2004, the parties entered into a separation agreement, which was incorporated but not merged into the parties' judgment of divorce entered October 18, 2005, providing that the plaintiff would have residential custody of the parties' children and that the defendant would pay $446 per week in child support. The separation agreement provided that no modification or waiver of any of the terms thereof would be valid unless in writing and signed by both parties.

In December 2016, the defendant moved, inter alia, to modify the child support provisions of the judgment of divorce to reflect two modification agreements to the separation agreement. In support of his motion, the defendant submitted his affidavit in which he averred that the parties entered into two written modification agreements, one dated December 1, 2007 (hereinafter the 2007 writing), and one dated September 4, 2008 (hereinafter the 2008 writing), to modify their separation agreement. The defendant submitted copies of the 2007 writing and the 2008 writing, which he averred were signed by both parties. The 2007 writing provided that the defendant [*2]would have "residential" custody of the parties' daughter and their two sons would "remain residing" with the plaintiff. The 2007 writing also provided that, in light of the change of residential custody of their daughter, the new child support amount payable by the defendant to the plaintiff would be $1,256 per month. The 2008 writing provided, in part, that "[c]hild support will end effective immediately." The plaintiff opposed the defendant's motion, and cross-moved for, inter alia, a determination of the defendant's child support arrears.

By order dated July 10, 2017, the Supreme Court determined that the 2007 writing and the 2008 writing were enforceable modifications of the separation agreement and directed a conference, and, thereafter, if necessary, a hearing, to aid in the determination of the remaining issues in the defendant's motion and the plaintiff's cross motion. The plaintiff appeals.

So much of the order as directed a conference, and thereafter, if necessary, a hearing, did not dispose

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Contrary to the plaintiff's contention, the defendant was not required to institute a plenary action, as he was seeking to enforce the terms of the parties' separation agreement, which he asserts were modified by the 2007 writing and the 2008 writing (see Campello v Alexandre, 155 AD3d 1381, 1382; Gavin v Catron, 35 AD3d 354, 355; Luisi v Luisi, 6 AD3d 398, 400; Taylor v Taylor, 251 AD2d 175, 175-176). The separation agreement was incorporated but not merged into their judgment of divorce, and the separation agreement permitted written modifications, signed by both parties. By the express terms of the judgment of divorce, the Supreme Court retained jurisdiction to enforce the terms of the separation agreement.

We agree with the Supreme Court's determination that the 2007 writing and the 2008 writing are enforceable modification agreements to the parties' separation agreement. Contrary to the plaintiff's contentions, because the parties were no longer married at the time of the execution of the 2007 writing and the 2008 writing, those agreements did not need certificates of acknowledgment in order to be enforceable (see Domestic Relations Law § 236[B][3]; Penrose v Penrose, 17 AD3d 847, 848; Hargett v Hargett, 256 AD2d 50, 50).

A separation agreement is a contract subject to the principles of contract construction and interpretation (see Matter of Meccico v Meccico, 76 NY2d 822, 823-824; Matter of Tammone v Tammone, 94 AD3d 1131, 1133; Fishbein v Fishbein, 72 AD3d 1021, 1021). Accordingly, where the language of the agreement is clear and unambiguous, the court should determine the intent of the parties based on that language without resorting to extrinsic evidence (see Matter of Tammone v Tammone, 94 AD3d at 1133; Fishbein v Fishnein, 72 AD3d at 1021-1022). Here, the 2007 writing and the 2008 writing are unambiguous (see Matter of Meccico v Meccico, 76 NY2d at 823-824; Fishbein v Fishbein, 72 AD3d at 1021-1022; Kosnac v Kosnac, 60 AD3d 636, 637; Winski v Russo Kane, 33 AD3d 697, 698). Accordingly, the Supreme Court was not required to conduct a hearing and we agree with the court's determination that the 2007 writing and the 2008 writing are enforceable (see Schron v Troutman Sanders LLP, 20 NY3d 430, 436; cf. Salinger v Salinger, 125 AD3d 747, 749)."