Kanarr v. Kanarr , 453 N.Y.S.2d 601 ( 1982 )

In a matrimonial action, the defendant husband appeals, as limited by his notice of appeal and brief, from so much of a judgment of divorce of the Supreme Court, Suffolk County (Mclnerney, J.), entered May 4,1981, as granted the plaintiff wife exclusive possession of the marital premises, and plaintiff cross-appeals from so much of the judgment as awarded her only $25 per week support and maintenance and $2,000 counsel fees. Judgment modified, on the law and the facts, by deleting the second decretal paragraph, which awarded plaintiff exclusive possession of the marital premises, and substituting therefor a provision that the marital residence be sold as expeditiously as possible and that the proceeds therefrom be divided equally between the parties. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, and the case is remitted to Special Term for further proceedings consistent herewith. This determination is without prejudice to plaintiff making an application for upward modification of the award of support and maintenance, if she be so advised. Under the circumstances of this case, we find that the trial court abused its discretion in awarding plaintiff exclusive possession of the marital residence. The property should be sold and the proceeds divided equally. (See Domestic Relations Law, § 234; Rattner v Rattner, 64 AD2d 650; cf. Kahn v Kahn, 43 NY2d 203; Ripp v Ripp, 38 AD2d 65, affd 32 NY2d 755.) Damiani, J. P., Titone, Mangano and Brown, JJ., concur.