Estes v. Estes

56 A.D.2d 622, 391 N.Y.S.2d 678, 1977 N.Y. App. Div. LEXIS 10714

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1977
• Status: Published

Opinion

In an action for divorce, the plaintiff wife appeals from so much of a judgment of the Supreme Court, Nassau County, dated March 1, 1976, as amended by an order of the same court, dated June 28, 1976, as (1) awarded her alimony and child support, on the ground that said awards are inadequate, and (2) in granting her exclusive occupancy of the marital residence, provided that either party could commence an action for partition without prior leave of the court. Judgment, as amended, modified, as a matter of discretion, by adding thereto a provision that, in the event defendant commences an action for partition, the same shall be without prejudice to an application by plaintiff for an increase in alimony. As so modified, judgment, as amended, affirmed insofar as appealed from, without costs or disbursements. The awards of alimony and child support are clearly within the bounds of judicial discretion. There being no showing that the interests of one party are so predominant that exclusive possession is "virtually compulsory”, the court properly provided for plaintiff to have exclusive occupancy of the marital residence, but did not preclude either party from commencing an action for partition without leave of the court (see Domestic Relations Law, § 234; Ripp v Ripp, 38 AD2d 65, 70, affd 32 NY2d 755). However, Special Term should have also provided that plaintiff could apply for an increase in alimony in the event that defendant commences an action for partition. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.