Adamo v. Adamo

Appellate Division of the Supreme Court of New York

Adamo v. Adamo

18 A.D.3d 407, 794 N.Y.S.2d 413

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 2, 2005

StatusPublished

Cited by8 cases

This text of 18 A.D.3d 407 (Adamo v. Adamo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adamo v. Adamo, 18 A.D.3d 407, 794 N.Y.S.2d 413 (N.Y. Ct. App. 2005).

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Opinion

In an action for a divorce and ancillary relief, the defendant appeals (1) from an order of the Supreme Court, Orange County (Slobod, J), dated July 9, 2003, which granted that branch of the plaintiffs motion which was to modify those provisions of an order of the same court dated November 3, 2000, awarding the defendant exclusive use and occupancy of the marital home, to the extent of directing its sale and (2), as limited by her brief, from so much of an order of the same court dated December 17, 2003, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated July 9, 2003, is dismissed, as that order was superseded by the order dated December 17, 2003, made upon reargument; and it is further,

Ordered that the order dated December 17, 2003, is reversed insofar as appealed from, on the law, upon reargument, the [408]*408branch of the plaintiffs motion which was to modify those provisions of the order dated November 3, 2000, awarding the defendant exclusive use and occupancy of the marital home to the extent of directing its sale is denied, and the order dated July 9, 2003, is vacated; and it is further,

Ordered that one bill of costs is awarded to the defendant.

It is well settled that before some alteration in the marital relationship, courts lack the authority, absent the consent of the parties, to direct the sale of the marital residence owned by the parties as tenants by the entirety (see Kahn v Kahn, 43 NY2d 203 [1977]; Harrington v McManus, 303 AD2d 368 [2003]; Kayden v Kayden, 234 AD2d 345 [1996]). Here, although the Supreme Court rendered a decision and order in November 2000 which addressed the various issues between the parties, the record indicates that it was not reduced to a judgment. In the absence of a judgment of divorce, the Supreme Court was without authority to direct the sale of the marital residence (see Jancu v Jancu, 241 AD2d 316 [1997]; Kayden v Kayden, supra). Prudenti, P.J., H. Miller, Ritter and Spolzino, JJ., concur.

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In an action for a divorce and ancillary relief, the defendant appeals (1) from an order of the Supreme Court, Orange County (Slobod, J), dated July 9, 2003, which granted that branch of the plaintiffs motion which was to modify those provisions of an order of the same court dated November 3, 2000, awarding the defendant exclusive use and occupancy of the marital home, to the extent of directing its sale and (2), as limited by her brief, from so much of an order of the same court dated December 17, 2003, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated July 9, 2003, is dismissed, as that order was superseded by the order dated December 17, 2003, made upon reargument; and it is further,

Ordered that the order dated December 17, 2003, is reversed insofar as appealed from, on the law, upon reargument, the [408]*408branch of the plaintiffs motion which was to modify those provisions of the order dated November 3, 2000, awarding the defendant exclusive use and occupancy of the marital home to the extent of directing its sale is denied, and the order dated July 9, 2003, is vacated; and it is further,

Ordered that one bill of costs is awarded to the defendant.

It is well settled that before some alteration in the marital relationship, courts lack the authority, absent the consent of the parties, to direct the sale of the marital residence owned by the parties as tenants by the entirety (see Kahn v Kahn, 43 NY2d 203 [1977]; Harrington v McManus, 303 AD2d 368 [2003]; Kayden v Kayden, 234 AD2d 345 [1996]). Here, although the Supreme Court rendered a decision and order in November 2000 which addressed the various issues between the parties, the record indicates that it was not reduced to a judgment. In the absence of a judgment of divorce, the Supreme Court was without authority to direct the sale of the marital residence (see Jancu v Jancu, 241 AD2d 316 [1997]; Kayden v Kayden, supra). Prudenti, P.J., H. Miller, Ritter and Spolzino, JJ., concur.

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Bluebook (online)

18 A.D.3d 407, 794 N.Y.S.2d 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adamo-v-adamo-nyappdiv-2005.

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