Lauer v. Lauer

145 A.D.2d 470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1988
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her notice of appeal and brief, from stated portions of a judgment of the Supreme Court, Westchester County (Dachenhausen, J.), dated August 13, 1987, which, inter alla, granted the plaintiff husband a divorce, directed the sale of the marital home, directed the parties to share equally in the costs of carrying and maintaining the home until such sale, and denied her application for an order holding the plaintiff in contempt.

Ordered that the judgment is affirmed insofar as appealed from, without costs or disbursements.

Under the circumstances presented in this case, we conclude that the Supreme Court properly directed an immediate sale of the marital home and that the proceeds be divided equally between the parties. The need of the wife, as the custodial parent, to occupy the marital residence was outweighed by the financial need of the parties to sell the home (see, Domestic Relations Law § 236 [B] [5] [d] [3]; Damiano v Damiano, 94 AD2d 132; Hillmann v Hillmann, 109 AD2d 777). The yearly carrying costs, estimated by the wife at approximately $34,000, exceeded her annual income of approximately $30,000. Furthermore, although the husband earns approximately $130,000 per year, in view of his child support payments and other financial obligations and expenses, it would be unduly burdensome for him to bear the costs of maintaining this home. Moreover, the proceeds of the sale of the home can be applied to the parties’ substantial debts and future living expenses (see, Parris v Parris, 136 AD2d 685; Blackman v Blackman, 131 AD2d 801; Cohen v Cohen, 104 AD2d 841, appeal dismissed 64 NY2d 773).

We have examined the defendant’s remaining contentions and find them to be without merit. Bracken, J. P., Rubin, Sullivan and Balletta, JJ., concur.