2017 NY Slip Op 06470
September 13, 2017
The plaintiff appeals an order from the Suffolk County Supreme Court. The order denied a portion of the plaintiff’s motion which addressed the matter of attorney’s fees, and granted the portion of the motion which ordered the sale of the marital home. The proceeds were to be equitably distributed.
Ordered: The portion of the order directing the sale of the home and equitably distributing the proceeds is dismissed. The plaintiff is not contending that portion of the order (CPLR 5511).
The parties were divorced in 2004. Stipulations were not merged into the judgment. One of these dealt with the disposition of the couple’s home. The judgment stated that it would maintain jurisdiction over the home for the purposes of enforcing the stipulations, and making any further judgments necessary under the circumstances.
In early 2014, the plaintiff asked the court to direct the defendant to transfer her interest to him, or to sell the property and equitably distribute the proceeds. The plaintiff also requested attorney’s fees. The Supreme Court denied the plaintiff’s request for attorney’s fees and granted the part of the motion that was to direct the sale of the residence and equitably distribute the parties’ interests.
The plaintiff argues that he didn’t get the result he was after because any division of the proceeds would not take into account payments that he made pursuant to a previous letter agreement. This argument is denied. His motion didn’t request specific performance. He also specifically requested that the court direct the sale and conceded to the court’s continued jurisdiction for the purposes of equitable distribution of the proceeds.
The plaintiff doesn’t disagree with this, and this appeal is dismissed pursuant to CPLR 5511.
The Supreme Court properly exercised its discretion when it denied the part of the motion which requested attorney fees (Difone v Difone 87 D3d 971, Taormina v Taormina 131 AD3 696).
Generally, a frivolous appeal has little or no factual basis, and is often used by counsel as a delay tactic, or as a means to frustrate the opposing party in some way.
If a couple divorces and the own a marital home, there are several ways it can be handled.
If neither spouse wants to stay in the house or neither can afford to buy the other out, couples can put the home on the market and share in the proceeds. Keep in mind however, that first all the expenses must be paid, including mortgages, real estate fees, and applicable taxes.
If you are involved in a family law matter and are contemplating divorce, it is important to speak with a qualified New York family lawyer from Stephen Bilkis and Associates. We have a reputation built on success and have helped thousands of clients receive the compensation they deserve. We have offices throughout New York for your convenience, including offices in Manhattan, Queens, the Bronx, Brooklyn, Staten Island, Suffolk County, Nassau County and Westchester County. Call them today for a free consultation at 1-800-NYNYLAW.