Ripp v. Ripp

• Decision Date: 13 December 1971
• Citation: 38 A.D.2d 65,327 N.Y.S.2d 465
• Parties: Edward M. RIPP, Appellant, v. Josephine RIPP, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 465

327 N.Y.S.2d 465

38 A.D.2d 65

Edward M. RIPP, Appellant, v. Josephine RIPP, Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 13, 1971.

Harrison Topkis, Garden City (Samuel Millman, Garden City, of counsel), for appellant.

Hyman Finkelson, New York City, for respondent.

Before RABIN, P.J., and HOPKINS, MUNDER, LATHAM and CHRIST, JJ.

HOPKINS, Justice.

The action is for a partition of the former marital home of the parties. The plaintiff and the defendant acquired the home as tenants by the entirety in 1950. In 1970 the defendant was granted a divorce. ¹

By the terms of the judgment dissolving the marriage the defendant was awarded the sole and exclusive possession of the marital home. Within four months after the judgment of divorce this action was commenced. The defendant interposed a defense that the action did not lie in the face of the provision in the judgment giving sole and exclusive possession of the premises to her. She then moved for summary judgment.

The Special Term granted the defendant's motion and dismissed the complaint. In the view of the Special Term, the action for partition was premature until the terms of the judgment of divorce were modified to remove the provision giving the defendant sole possession of the home and to provide for increased support of the defendant by the plaintiff. ² We affirm the order of Special Term, with leave to the plaintiff to move for a modification of the judgment of divorce so as to grant to him the right of partition and thereafter to move to open this case and for permission to serve a supplemental complaint to allege such modification of judgment.

We come to this conclusion after a consideration of the traditional principles coalesced in partition and the purpose and policy to be served by the Domestic Relations Law. Once the tenancy by the entirety is converted to a tenancy in common by the divorce of the parties (Stelz v. Shreck, 128 N.Y. 263, 28 N.E. 510), an action for partition usually may be brought by either party (Yax v. Yax, 240 N.Y. 590, 148 N.E. 717; Plancher v. Plancher, 35 A.D.2d 417, 317 N.Y.S.2d 140). It is this doctrine upon which the plaintiff relies in this appeal.

Nonetheless, it is likewise true that the matrimonial relation between the paties at the time of the acquisition of the premises created the tenancy by the entirety--a special type of ownership which could not be severed by partition so long as the marriage existed (Vollaro v. Vollaro, 144 App.Div. 242, 129 N.Y.S. 43). At the point that the marriage was dissolved in this case the court granting the divorce directed that the sole and exclusive possession of the premises should be awarded to the defendant. This determination was made under the express authority of the statute to (1) 'determine any question as to the title to property arising between the parties' and (2) 'make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties' (Domestic Relations Law, § 234). It is this exercise of power by the court in her behalf upon which the defendant relies to sustain the order of Special Term.

From a purely practical view, it is hardly conceivable that the court granting exclusive possession of the home to the defendant expected that its judgment would be efective only for the span of the four months preceding the commencement of this action, especially since that judgment was made 'having regard to the circumstances of the case and of the respective parties,' in the words of the statute. In the interest of the orderly administration of justice, what one judge in a matrimonial action decides should not be put aside abruptly by the order of another judge in a second action between the same parties.

The plaintiff's argument to uphold his complaint necessarily rests on the assumption that partition is an absolute right of a tenant in common. ³ However, it first should be noted that in this case the tenancy in common was not the original relationship between the parties, but a spin-off of the tenancy by the entirety as a result of the severance of the marital ties. The creation of the tenancy in common was necessarily intertwined with the conditions laid down in the judgment effectig the divorce.

Moreover, it is not accurate to say that partition is an absolute right of a tenant in common (cf. 2 Tiffany, The Law of Real Property (3d ed.), § 474). The statute confers on a tenant in common the right to maintain an action for partition (Real Property Actions and Proceedings Law, § 901), but the remedy has always been subject to the equities between the parties. ⁴ As was said in Moses v. Moses (170 App.Div. 211, 217--218, 155 N.Y.S. 1066, 1071), quoting approvingly from a then contemporary treatise:

'In Freeman on Cotenancy and Partition it is said (section 505): 'When a suit for partition is in a court of equity, or in a court authorized to proceed with powers as ample as those exercised by courts of equity, it may be employed to adjust all the equities existing between the parties and arising out of their relation to the property to be divided. 'He who seeks equity must do equity.' Hence whoever, by a suit for partition, invokes the jurisdiction of a court of equity in his behalf, thereby submits himself to the same jurisdiction, and concedes its authority to compel him to deal equitably with his co-tenants. As the equities of the co-tenants may arise from a great variety of circumstances, it follows that the assertion of these equities necessarily introduces into partition suits a great variety of issues, and calls for various allegations in the respective complaints and answers which would not be required in an ordinary suit for partition not contemplated by any special equities between the co-tenants.''

Both precedent (Collin v. Seacombe, 277 App.Div. 1141, 101 N.Y.S.2d 259; Grody v. Silverman, 222 App.Div. 526, 226 N.Y.S. 468), even in actions between divorced parties (Sirianni v. Sirianni, 14 A.D.2d 432, 221 N.Y.S.2d 693; Hosford v. Hosford, 273 App.Div. 659, 80 N.Y.S.2d 306), and modern texts (see 4A Powell on Real Property, § 609, pp. 636--637; 2 American Law of Property, § 6.26, p. 117) have recognized that equitable considerations must be taken into account in partition. ⁵ In the same vein, partition will not be compelled in violation of an agreement or a restriction imposed on the estate (cf. Chew v. Sheldon, 214 N.Y. 344, 348--349, 108 N.E. 552; Nash v. Frank, 9 Misc.2d 103, 166 N.Y.S.2d 846, affd. 6 A.D.2d 687, 174 N.Y.S.2d 953; affd. 6 N.Y.2d 827, 188 N.Y.S.2d 215), albeit the agreement or restriction must be for a reasonable duration (Albin v. Albin, 26 Misc.2d 383, 208 N.Y.S.2d 252, affd. 12 A.D.2d 933, 212 N.Y.S.2d 725; Casolo v. Nardella, 193 Misc. 378, 84 N.Y.S.2d 178, affd. 275 App.Div. 502, 90 N.Y.S.2d 420, mot. lv. to app. dsmd. 300 N.Y. 549, 89 N.E.2d 518).

Thus, in the present action for partition the court would have to consider the provision in the divorce decree granting sole possession of the premises to the defendant and the effect of partition on the circumstances of the parties. In that appraisal the court would be confronted with the fact that the defendant's loss of possession would be coupled in all probability with the need for increased support as a result of conditions in the rental market. The adjustment of these equities, on the other hand, could better be managed by the court in the Matrimonial Part, which so recently had been concerned with these very circumstances in molding the judgment of divorce.

In addition, we think that the Matrimonial Part, dealing solely with problems arising out of marital relations, should decide when and under what terms the marital home should be sold (cf. Pearson v. Pearson, 30 A.D.2d 927, 294 N.Y.S.2d 984.) The Matrimonial...