Petty v. Petty, 1

• Decision Date: 22 December 1980
• Docket Number: No. 1,No. 2,1,2
• Citation: 433 N.Y.S.2d 867,79 A.D.2d 679
• Parties: Richard PETTY, Appellant, v. Geraldine PETTY, Respondent. (Matter) In the Matter of Geraldine PETTY, Appellant, v. Richard PETTY, Respondent. (Matter)
• Court: New York Supreme Court — Appellate Division

Page 867

433 N.Y.S.2d 867

79 A.D.2d 679

Richard PETTY, Appellant, v. Geraldine PETTY, Respondent. (Matter No. 1)

In the Matter of Geraldine PETTY, Appellant, v. Richard PETTY, Respondent. (Matter No. 2)

Supreme Court, Appellate Division, Second Department.

Dec. 22, 1980.

Philip T. Feiring, Garden City, for appellant in Matter No. 1 and respondent in Matter No. 2.

Geraldine Petty, respondent pro se in Matter No. 1 and appellant pro se in Matter No. 2.

Before MOLLEN, P. J., and COHALAN, O'CONNOR and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

Consolidated appeals (1) by the former husband from an order of the Supreme Court, Queens County, dated February 25, 1980, which denied his application for partition of the former marital residence or the payment of 50% of a reasonable rental therefor; and (2) by the former wife from an order of the Family Court, Queens County, dated April 28, 1980, which inter alia, dismissed her petition seeking an increase in the amount of child support.

Orders affirmed, without costs or disbursements.

The parties in their separation agreement expressly gave to the wife exclusive possession of the marital residence. Upon their divorce six weeks later, the divorce decree adopted this provision and further provided that the agreement would survive and not merge into said decree. Subsequently, the wife remarried and her new husband moved into the former marital residence. Sometime later, an application was made by the former husband, inter alia, for partition of the residence.

We agree with Special Term that the phrases "exclusive possession" and "exclusive right to occupy" as used in the separation agreement were intended to provide the wife with the right to occupy the premises to the exclusion of her former husband and not of third persons if she so chose. Thus, the former husband, as tenant in common, cannot compel partition of the property since such an action would violate the parties' agreement (see Orologio v. Orologio, 82 Misc.2d 1022, 372 N.Y.S.2d 15; cf. Ripp v. Ripp, 32 N.Y.2d 755, 344 N.Y.S.2d 950, 298 N.E.2d 114, affg. 38 A.D.2d 65, 69, 327 N.Y.S.2d 465 on the opn. at the Appellate Division; Contractual Provisions as Affecting Right to Judicial Partition, 37 A.L.R.3d 962).

On the question of a denial of upward modification of child support we find that the case of Matter of Boden v. Boden (42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791) is dispositive.