Ward v. Ward

• Decision Date: 26 May 1983
• Citation: 94 A.D.2d 908,463 N.Y.S.2d 634
• Parties: In the Matter of Jean A. WARD, Respondent, v. William F. WARD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 634

463 N.Y.S.2d 634

94 A.D.2d 908

In the Matter of Jean A. WARD, Respondent, v. William F. WARD, Appellant.

Supreme Court, Appellate Division Third Department.

May 26, 1983.

Mazza, Williamson & Clune, Ithaca (Robert J. Clune, Ithaca, of counsel), for appellant.

Wiggins, Tsapis, Holmberg & Galbraith, Ithaca (Anna K. Holmberg, Ithaca, of counsel), for respondent.

Before SWEENEY, J.P., and MAIN, CASEY, YESAWICH and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Family Court of Tompkins County, entered July 30, 1982, which, inter alia, awarded petitioner title and exclusive possession of the marital residence, determined that the action was governed by section 236, Part B, of the Domestic Relations Law, awarded petitioner maintenance of $125 per month and $1,500 in counsel fees.

The parties were married in 1952, and have three children, two of whom are emancipated. Petitioner commenced a divorce action on October 11, 1978 alleging cruel and inhuman treatment. Respondent defaulted in answering, but did oppose petitioner's motion for exclusive possession of the marital residence and other temporary relief, which was ultimately denied. Thereafter, no further action was taken by either party with the exception of a separation agreement purportedly signed, but never delivered to respondent's attorney. The parties continued to reside at the marital residence. This status continued until October 27, 1980 when petitioner moved to discontinue the marital action pursuant to CPLR 3217 (subd. par. 1). The motion was unopposed and the action discontinued by order dated November 6, 1980. Thereafter, on November 25, 1980, petitioner commenced a second action for divorce and again moved for exclusive possession of the marital residence, custody of the minor child and counsel fees. Respondent cross-moved for similar relief. By order dated December 17, 1980, Special Term (Bryant, J.), denied petitioner's motion but ordered respondent to pay past due and future maintenance charges on the residence and $50 per week support. Petitioner was granted a default divorce on August 6, 1981, and all questions pertaining to custody, child support, maintenance and equitable distribution were referred to Family Court. On August 24, 1981, petitioner commenced the instant proceeding in Family Court. By order entered July 30, 1982, following a trial, petitioner was awarded, inter alia, title and exclusive possession of the marital residence, maintenance of $125 per month and $1,500 in counsel fees. Respondent's appeal ensued.

On this appeal, respondent concedes the court's equal division of the marital property in the form of bank accounts, and an Individual Retirement Account was appropriate but asserts the court erred in valuing the marital property as of the commencement date of the second divorce action rather than the first divorce action. We find the argument to be without merit. Respondent husband concedes he neither opposed discontinuance of the prior action nor the granting of a decree of divorce in the second action. Under these circumstances, he cannot be heard to complain that equitable distribution was available to his wife (cf. Valladares v. Valladares, 55 N.Y.2d 388, 449 N.Y.S.2d 687, 434 N.E.2d 1054; Tucker v. Tucker, 55 N.Y.2d 378, 449 N.Y.S.2d 683, 434 N.E.2d 1050; Zuckerman v. Zuckerman, 56 N.Y.2d 636, 450 N.Y.S.2d 786, 436 N.E.2d 192; Pollack v. Pollack, 56 N.Y.2d 968, 453 N.Y.S.2d 623, 439 N.E.2d 339; Battaglia v. Battaglia, 90 A.D.2d 930, 457 N.Y.S.2d 915). We are thus concerned, not with the propriety of the utilization of equitable distribution by the Family Court, rather, solely with the propriety of the distribution made by that court. Respondent's argument that the court should have used the date of the commencement of the initial divorce action for purposes of valuing the marital residence is without merit. The first action was discontinued upon an order to which respondent had no opposition and it thus evaporated as if it never existed. The court properly used the date upon which the second action was commenced as the valuation date.

Respondent further contends that the trial court erred in awarding title and exclusive possession of the marital residence to petitioner, asserting that he is entitled to a 50% interest in the residence. We disagree. Respondent mistakenly construes section 236, Part B, as requiring "equal", and not equitable distribution of the marital assets. Marital property is to be distributed on the basis of the factors enumerated in the equitable distribution statute...