Milberg v. Milberg

36 A.D.2d 816, 320 N.Y.S.2d 483, 1971 N.Y. App. Div. LEXIS 4224

Opinion

Concur — Markewieh, J. P., Nunez, Steuer and Tilzer, JJ.; McNally, J., dissents in the following memorandum : I dissent and vote to modify by denying the application without prejudice to a renewal thereof when the younger daughter of the parties reaches majority. Plaintiff heretofore obtained a judgment of divorce in July of 1960. The majority has affirmed a modification of the decree, annulling and striking the provision which granted occupancy of the real property to the plaintiff. The decree, dated July 1, 1960, contains the following language: “ ordered, adjudged and DECREED, that the plaintiff may continue to use the house now owned by the parties as tenants by the entirety so long as she uses it for the residence of herself and the four children ”. The two older children, males, have attained their majority, and reside with their father; the other two children, females, were then 8 and 7. The older girl is presently 19 years of age and is a college student. The other was to enter college in September, 1970. Under the terms of the decree, it is my opinion that the application is premature, and I would deny it, without prejudice, until such time as the younger female reaches her majority, since she and her sister, under the terms of the decree, are entitled to have a home. Defendant’s factually unsupported conclusory allegation of straightened circumstances is no legal basis for the relief sought by defendant.