Brevilus v. Brevilus
Decision Date | 19 June 2007 |
Docket Number | 2005-08907. |
Parties | VEDA LAMENE BREVILUS, Appellant, v. JEAN MANEUS BREVILUS, Respondent. |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the plaintiff.
Before some alteration in the marital relationship, courts lack the authority, absent the parties' consent, to direct the sale of the marital residence owned by the parties as tenants by the entirety (see Kahn v Kahn, 43 NY2d 203, 209-210 [1977]; Harrington v McManus, 303 AD2d 368, 369 [2003]; Kayden v Kayden, 234 AD2d 345 [1996]; Walker v Walker, 227 AD2d 469 [1996]). Here, although the Supreme Court found during a trial that the plaintiff was entitled to a divorce, and indicated in a written decision that it issued after the trial that the parties' marriage was to be dissolved, the record indicates that the court's determination was not embodied in a judgment of divorce at the time it issued the order appealed from. In the absence of a judgment of divorce, the court was without the authority to direct the sale of the marital residence (see Adamo v Adamo, 18 AD3d 407, 408 [2005]; Jancu v Jancu, 241 AD2d 316, 317 [1997]), which it effectively did by compelling the plaintiff to sell her share therein to the defendant.
Furthermore, while a trial court has the discretion "to select valuation dates for marital assets which are appropriate and fair under the circumstances" (D'Angelo v D'Angelo, 14 AD3d 476 [2005]), we find that the Supreme Court improvidently exercised its discretion in valuing the marital residence. After the trial, which was held on various dates from October 2004 to January 2005, the Supreme Court, in its decision, relied upon an appraisal from ...
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