Barcelow v. Barcelow

64 A.D.2d 1024, 409 N.Y.S.2d 311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1978
• Docket: Appeal No. 1
• Status: Published

Opinion

—Judgment unanimously modified, and, as modified, affirmed, without costs, and matter remitted to Erie Supreme Court for further proceedings, in accordance with the following memorandum: Defendant appeals from a judgment of the Supreme Court, Erie County, entered August 17, 1976, granting plaintiff the sum of $150 per week for support, granting plaintiff exclusive possession of the marital home, and ordering defendant to pay counsel fees. The fourth ordering paragraph granting plaintiff exclusive possession of the marital residence is stricken. Upon the termination of her present occupancy, defendant shall pay an adequate additional amount of alimony for housing consonant with the parties’ previous standard of living. The record indicates that defendant is the sole owner in fee of the premises. While plaintiff wife has demonstrated a right to support, including shelter, no compelling reason is shown why defendant should be deprived of or excluded from his property, or why plaintiff should have rights in the property greater than any right accorded the owner (Dubno v Dubno, 51 AD2d 693; Weltz v Weltz, 35 AD2d 208; Lerner v Lerner, 21 AD2d 861). The only child of the marriage is an emancipated adult and smaller quarters can adequately accommodate her living alone. It was an improvident exercise of discretion to give plaintiff exclusive possession of the marital home (Parlato v Parlato, 44 AD2d 720). This case is remitted to Erie County Trial Term, to increase equitably the alimony award to include adequate provision for plaintiff’s housing expenses and for further proceedings not inconsistent with this memorandum. Other claims raised in this appeal are found to be without merit. (Appeal from judgment of Erie Supreme Court—separation.) Present—Moule, J. P., Cardamone, Dillon, Hancock, Jr., and Schnepp, JJ.