Hogan v. McClain

245 A.D.2d 1071, 666 N.Y.S.2d 78, 1997 N.Y. App. Div. LEXIS 13844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1997
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in granting plaintiff a credit against the proceeds of the sale of the marital residence in an amount less than the total mortgage principal reduction payments that he made. The parties’ 1992 stipulation concerning the disposition of the marital residence was incorporated but not merged in the parties’ 1993 divorce judgment. The stipulation provided that plaintiff would receive a credit for any reduction in mortgage principal he made from the time the parties separated in August of 1989 until the property was transferred. Plaintiff, however, breached the terms of the stipulation by failing to cooperate with brokers or real estate agents in the showing and potential sale of the property and in generally behaving in an obstructionist manner (see, Fugelsang v Fugelsang, 131 AD2d 810, 812; see also, Matter of Meccico v Meccico, 76 NY2d 822, 823-824, rearg denied 76 NY2d 889; Alger v Alger, 183 AD2d 1000). Thus, the court was within its powers in granting plaintiff a credit for only those principal reduction payments made up to the date of the divorce judgment.

Plaintiff also contends that he is entitled to an additional credit against the proceeds of the sale of the marital residence based upon his overpayment of child support. We are unable to review that contention, however, because the record contains no evidence of the amount of child support ordered and the amount allegedly overpaid. (Appeal from Order of Supreme Court, Livingston County, Cicoria, J.—Enforce Judgment.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ.