Frisina v. Frisina

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Dunn, J.), dated December 20, 1989, which, upon granting the defendant’s motion for reargument, and renewal, (1) vacated those provisions of an order of the same court, dated December 4, 1989, which directed the sequestration of the defendant’s assets and the appointment of a receiver, and (2) sua sponte ordered an income execution and the immediate pendente lite sale of the marital residence and the parties’ condominium in Vermont.

Ordered that the order is affirmed, with costs.

The wife contends that the court erred in ordering the pendente lite sale of the marital residence and a condominium in Vermont, both of which were owned by the parties as tenants by the entirety. We disagree. We note that the foreclosure sale of the marital residence has rendered this issue moot insofar as it relates to that property. In any event, because the wife acquiesced in the sale of the properties when—at a hearing to determine the husband’s motion to vacate the court’s prior order—the court questioned her directly about this matter, the court’s determination was proper (see, Harrilal v Harrilal, 128 AD2d 502).

It was also proper for the court to vacate those provisions of the prior order which directed the sequestration of the husband’s corporate assets and the appointment of a receiver, and instead to order an income execution on the husband’s income. In this case, there was no evidence in the record that the husband had a history of transferring or converting marital assets (cf., Wong v Wong, 161 AD2d 710) nor had the court first attempted to take the less extreme measure of ordering an income execution as a means of insuring that the husband complied with the terms of the pendente lite order (cf., Rose v Rose, 138 AD2d 475; see also, Matter of Brennan v Brennan, 109 AD2d 960). Kunzeman, J. P., Eiber, Miller and Ritter, JJ., concur.