Freeman v. Freeman

Appellate Division of the Supreme Court of New York

Freeman v. Freeman

112 A.D.2d 805, 492 N.Y.S.2d 307, 1985 N.Y. App. Div. LEXIS 56057

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

DecidedJuly 12, 1985

StatusPublished

Cited by1 cases

This text of 112 A.D.2d 805 (Freeman v. Freeman) 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

Freeman v. Freeman, 112 A.D.2d 805, 492 N.Y.S.2d 307, 1985 N.Y. App. Div. LEXIS 56057 (N.Y. Ct. App. 1985).

Pincite

Opinion

Order, insofar as appealed from, unanimously reversed, on the law, without costs, in accordance with the following memorandum: The parties owned two parcels of real property as tenants by the entirety before their litigated divorce in 1980. Provisions made for disposition of the property in the amended divorce decree were not carried out. In April 1985 an order was made modifying the provisions of the divorce decree with respect to the real property. That order is the subject of this appeal. We reverse that order insofar as appealed from, because the parties have been tenants in [806]*806common since 1980 and the court lacked power to alter their property rights in this manner. We treat the motion to modify as a motion to vacate the 1980 provisions which provided, as to the first parcel, that it be sold promptly at a price agreeable to the parties, or fixed by the court if the parties could not agree, and which provided, as to the second parcel, that the plaintiff must convey her interest to defendant at a price to be set by agreement or appraisal. The court lacks the power to order such dispositions unless the parties have agreed to them and these provisions must be vacated (Szabo v Szabo, 71 AD2d 32). The parties’ remedy is an action in partition if they cannot agree. (Appeal from order of Supreme Court, Oneida County, Grow, J. — enforce decree.) Present — Doerr, J. P., Boomer, Pine and Schnepp, JJ.

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Order, insofar as appealed from, unanimously reversed, on the law, without costs, in accordance with the following memorandum: The parties owned two parcels of real property as tenants by the entirety before their litigated divorce in 1980. Provisions made for disposition of the property in the amended divorce decree were not carried out. In April 1985 an order was made modifying the provisions of the divorce decree with respect to the real property. That order is the subject of this appeal. We reverse that order insofar as appealed from, because the parties have been tenants in [806]*806common since 1980 and the court lacked power to alter their property rights in this manner. We treat the motion to modify as a motion to vacate the 1980 provisions which provided, as to the first parcel, that it be sold promptly at a price agreeable to the parties, or fixed by the court if the parties could not agree, and which provided, as to the second parcel, that the plaintiff must convey her interest to defendant at a price to be set by agreement or appraisal. The court lacks the power to order such dispositions unless the parties have agreed to them and these provisions must be vacated (Szabo v Szabo, 71 AD2d 32). The parties’ remedy is an action in partition if they cannot agree. (Appeal from order of Supreme Court, Oneida County, Grow, J. — enforce decree.) Present — Doerr, J. P., Boomer, Pine and Schnepp, JJ.

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Bluebook (online)

112 A.D.2d 805, 492 N.Y.S.2d 307, 1985 N.Y. App. Div. LEXIS 56057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-freeman-nyappdiv-1985.

Opinion

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