Sember v. Sember
| Decision Date | 01 April 2010 |
| Citation | 72 A.D.3d 1150,898 N.Y.S.2d 332 |
| Parties | Kelly M. SEMBER, Respondent, v. David J. SEMBER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
72 A.D.3d 1150
Kelly M. SEMBER, Respondent,
v.
David J. SEMBER, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
April 1, 2010.
Cynthia J. Tippins, East Greenbush, for appellant.
Before: MERCURE, J.P., SPAIN, ROSE, LAHTINEN and STEIN, JJ.
ROSE, J.
Appeal from a judgment of the Supreme Court (Cahill, J.), entered February 6, 2009 in Ulster County, ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.
The parties to this 18-year marriage have four children now ranging from 8 to 18 years of age. After defendant left the marital residence and plaintiff commenced this action for divorce, the parties agreed to the ground of abandonment and that plaintiff would have sole legal and physical custody of the children. After a bench trial of the remaining issues of equitable distribution, maintenance and child support, Supreme Court issued a judgment that denied plaintiff any maintenance, granted her exclusive use and possession of the marital residence, and required defendant to pay marital residence expenses,
Supreme Court did not err in awarding plaintiff exclusive possession, as there is a well-established preference for allowing the custodial parent to remain in the marital residence with the minor children of the marriage unless that parent "can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds" ( Nolan v. Nolan, 215 A.D.2d 795, 795, 626 N.Y.S.2d 568 [1995]; see Stacey v. Stacey, 52 A.D.3d 1219, 1221, 860 N.Y.S.2d 350 [2008]; Nissen v. Nissen, 17 A.D.3d 819, 820, 793 N.Y.S.2d 248 [2005]; Goldblum v. Goldblum, 301 A.D.2d 567, 568, 754 N.Y.S.2d 32 [2003]; see also Domestic Relations Law § 236[B][5] [f] ). The record makes clear that plaintiff cannot obtain a comparable home with her available resources, and there is no evidence that she will be unable to maintain the marital residence with defendant paying the carrying charges. Further, Supreme Court expressly found defendant's claim that he could not afford to meet the financial obligations imposed by the judgment not to be credible, an assessment to which we defer ( see e.g. Evans v. Evans, 55 A.D.3d 1079, 1081, 866 N.Y.S.2d 788 [2008] ). Nor was the marital residence, which the parties agreed...
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