ADAMO v. ADAMO (2005)

In an action for a divorce and ancillary relief, the defendant appeals (1) from an order of the Supreme Court, Orange County (Slobod, J.), dated July 9, 2003, which granted that branch of the plaintiff's motion which was to modify those provisions of an order of the same court dated November 3, 2000, awarding the defendant exclusive use and occupancy of the marital home, to the extent of directing its sale and (2), as limited by her brief, from so much of an order of the same court dated December 17, 2003, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated July 9, 2003, is dismissed, as that order was superseded by the order dated December 17, 2003, made upon reargument;  and it is further,

ORDERED that the order dated December 17, 2003, is reversed insofar as appealed from, on the law, upon reargument, the branch of the plaintiff's motion which was to modify those provisions of the order dated November 3, 2000, awarding the defendant exclusive use and occupancy of the marital home to the extent of directing its sale is denied, and the order dated July 9, 2003, is vacated;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

 It is well settled that before some alteration in the marital relationship, courts lack the authority, absent the consent of the parties, to direct the sale of the marital residence owned by the parties as tenants by the entirety (see Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809;  Harrington v. McManus, 303 A.D.2d 368, 755 N.Y.S.2d 661;  Kayden v. Kayden, 234 A.D.2d 345, 650 N.Y.S.2d 790).   Here, although the Supreme Court rendered a decision and order in November 2000 which addressed the various issues between the parties, the record indicates that it was not reduced to a judgment.   In the absence of a judgment of divorce, the Supreme Court was without authority to direct the sale of the marital residence (see Jancu v. Jancu, 241 A.D.2d 316, 660 N.Y.S.2d 10;  Kayden v. Kayden, supra).