Heitzman v. Heitzman
| Decision Date | 05 November 1984 |
| Parties | Valerie HEITZMAN, Respondent, v. Anton HEITZMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Charles J. Spiegel, Jr., New York City (Daniel J. Genovese, New York City, of counsel), for appellant.
Klar, Piergrossi & Gallina, New York City (David M. Schuller, New York City, of counsel), for respondent.
Before GIBBONS, J.P., and O'CONNOR, WEINSTEIN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County, entered September 12, 1983, as granted that branch of plaintiff wife's motion which sought the appointment of a receiver to sell the marital premises and ordered a hearing on those branches of her motion which sought to hold defendant husband in willful contempt of court for failure to pay alimony arrears and counsel fees, and for failure to place the marital residence up for sale.
Leave to appeal from so much of the order as directed a hearing is granted by Justice GIBBONS (see Levinson v. Levinson, 97 A.D.2d 458, 467 N.Y.S.2d 427; Bagdy v. Progresso Foods Corp., 86 A.D.2d 589, 446 N.Y.S.2d 137).
Order modified, on the law, by deleting the provision thereof which directed a hearing on that branch of plaintiff's motion which sought to hold defendant in willful contempt with regard to his failure to pay alimony arrears and counsel fees and substituting therefore a provision denying that branch of the motion. As so modified, order affirmed insofar as appealed from, with costs to plaintiff.
By judgment of divorce dated December 16, 1976, defendant husband was directed to dispose of the marital residence by either purchasing plaintiff wife's interest in the property (should he agree with an appraisal) after deducting certain expenses, or by selling the premises and dividing the proceeds, again after deducting certain expenses.
Two enforcement orders and more than seven years later, defendant has yet to comply with the judgment. On plaintiff's motion, Special Term appropriately ordered the appointment of a receiver to sell the premises. Contrary to defendant's argument, title to the premises was already determined in the divorce decree. Accordingly, a separate and plenary action is not required (cf. Perry v. Perry, 79 A.D.2d 851, 434 N.Y.S.2d 496). Nor is defendant entitled, as he argues for the first time on appeal, to an equitable credit representing the value of repairs he made to the premises over his nearly eight-year exclusive possession of the property. The equities clearly do not lie in defendant's favor. He has failed to comply with the judgment and two enforcement orders. The divorce decree rendered him responsible for all carrying charges pending disposition of the property while also...
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