Wobser v. Wobser

• Court: New York Supreme Court — Appellate Division
• Citation: Wobser v. Wobser, 458 N.Y.S.2d 113, 91 A.D.2d 826 (N.Y. App. Div. 1982)
• Decision Date: 17 December 1982
• Parties: Arline D. WOBSER, Respondent, v. William R. WOBSER, Appellant.

Page 113

458 N.Y.S.2d 113

91 A.D.2d 826

Arline D. WOBSER, Respondent, v. William R. WOBSER, Appellant.

Supreme Court, Appellate Division Fourth Department.

Dec. 17, 1982.

Merkel & Mittleman by David Merkel, Rochester, for respondent.

H. Paul Comisar by B. Robert Rosenberg, Rochester, for appellant.

Before DILLON, P.J., and HANCOCK, DOERR, DENMAN and BOOMER, JJ.

MEMORANDUM:

The judgment of divorce is modified by deleting the fifth decretal paragraph which grants the wife exclusive possession of the marital residence, and by substituting therefor a direction that it be sold, and the net proceeds equally divided (Sharer v. Sharer, 60 A.D.2d 780, 400 N.Y.S.2d 423). Unless some unusual circumstances exist, the sale of the marital home should be ordered at the time of the making of the judgment. Only where one spouse has demonstrated an overriding need to occupy the marital premises, is an award of exclusive possession proper (Ripp v. Ripp, 38 A.D.2d 65, 327 N.Y.S.2d 465, affd. 32 N.Y.2d 755, 344 N.Y.S.2d 950, 298 N.E.2d 114). Exclusive possession is usually granted to the spouse who is awarded custody of the minor children of the marriage (see Wurm v. Wurm, 87 A.D.2d 590, 447 N.Y.S.2d 758, app. dsmd. 56 N.Y.2d 886, 453 N.Y.S.2d 429, 438 N.E.2d 1145; Weseley v. Weseley, 58 A.D.2d 829, 396 N.Y.S.2d 455). Here, the children living with the wife are adults and they may not remain in the residence for long. Moreover, the husband should not be compelled to subsidize his adult children by providing living quarters for them.

Based upon the record before us, and taking into consideration the sale of the house and the division of the proceeds, we find that the award of $75 per week alimony is appropriate....