Allen v. Allen , 1973 N.Y. App. Div. LEXIS 3733 ( 1973 )

In an action in which a judgment of the Supreme Court, Westchester County, was entered September 19, 1972 granting defendant a divorce after a nonjury trial, defendant appeals from so much of the judgment as directed that (1) plaintiff pay defendant $75 per week for support and education of the parties’ two infant children, (2) thé marital residence be sold and the net proceeds divided equally between the parties, (3) plaintiff have the right to remove a certain piano from the marital residence and (4) until the sale of the marital residence, the parties continue to be equally responsible for payment of its carrying charges. Judgment modified, on the law and the facts and in the exercise of discretion, by striking therefrom the fourth, fifth, sixth, seventh and eighth decretal paragraphs, which direct the sale, pertain thereto, and permit removal of the piano, and substituting therefor the following: “ ordered, adjudged and decrbed that defendant be awarded exclusive occupancy of the marital residence and that she pay all of the carrying charges thereupon ”. As so modified, judgment affirmed insofar as appealed from, without costs. In our opinion, the interests of the children would best be served if they remain in their present home. During argument, appellant’s counsel stated that his client, if awarded exclusive occupancy of the home, would pay all the carrying charges relating thereto. Rabin, P. J., Munder, Latham, Shapiro and Gulotta, JJ., concur.