Rattner v. Rattner

64 A.D.2d 650, 407 N.Y.S.2d 221, 1978 N.Y. App. Div. LEXIS 12454

Opinion

In an action for divorce, the defendant husband appeals from a judgment of the Supreme Court, Nassau County, entered January 24, 1978, which, inter alia, granted the plaintiff a divorce on the ground of cruel and inhuman treatment. Judgment modified, on the law and the facts, by (1) deleting the second decretal paragraph thereof and substituting therefor a provision that the marital residence be sold as expeditiously as possible and that the proceeds therefrom be divided equally between the parties; and (2) by deleting, from the fourth decretal paragraph thereof, the words "The sum of Two Thousand Dollars ($2,000.00)” and substituting the words, "The sum of One Thousand Five Hundred Dollars ($1,500.00)”. As so modified, judgment affirmed, without costs or disbursements. Under the unusual circumstances of this case, we hold that the trial court abused its discretion in awarding the plaintiff exclusive possession of the marital residence. The property should be sold and the proceeds divided equally (see Domestic Relations Law, § 234; cf. Kahn v Kahn, 43 NY2d 203; Ripp v Ripp, 38 AD2d 65, affd 32 NY2d 755). Furthermore, the counsel fees were excessive to the extent indicated herein (see Domestic Relations Law, § 237; Ryder v Ryder, 54 AD2d 693). We have considered the other contentions raised by the defendant and find them to be without merit. Hopkins, J. P., Titone, Gulotta and O’Connor, JJ., concur.