MALONE BARNES v. BARNES III

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Diana L. MALONE–BARNES, Respondent–Appellant, v. Cedric M. BARNES III, Appellant–Respondent.

Decided: November 21, 2013

Before: LAHTINEN, J.P., McCARTHY, SPAIN and EGAN JR., JJ. DeRoberts Law Firm, Syracuse (Nicholas E. Tishler, Niskayuna, of counsel), for appellant-respondent. Macht, Brenizer & Gingold, PC, Syracuse (Jon W. Brenizer of counsel), for respondent-appellant.

Cross appeals from a supplemental order of the Supreme Court (Cerio Jr., J.), entered January 6, 2012 in Madison County, which, among other things, granted plaintiff's cross motion for, among other things, an award of counsel fees.

Of the various arguments raised on these cross appeals, only Supreme Court's directive regarding the logging and sale of timber upon the marital premises warrants discussion. The parties' separation agreement is silent with respect to the issue of logging and, insofar as is relevant here, only addresses the circumstances under which the marital premises would be subject to sale. “Trees, permanent shrubbery and bushes form part of the land” (Allen v. Oscar G. Murray R.R. Employes' Benefit Fund, 112 Misc. 156, 161 [1920] ) and, as such, the timber at issue is part and parcel of the marital premises. Thus, absent a provision in the separation agreement evidencing the parties' intent to log the marital premises prior to the sale thereof, Supreme Court erred in directing that the timber existing thereon be logged and sold separately. Accordingly, Supreme Court's order must be modified to this extent. The parties' remaining contentions, including plaintiff's assertion that Supreme Court abused its discretion in its award of counsel fees, have been examined and found to be lacking in merit.

ORDERED that the supplemental order is modified, on the law, without costs, by reversing so much thereof as directed the immediate sale of the timber on the marital premises, and, as so modified, affirmed.

EGAN JR., J.

LAHTINEN, J.P., McCARTHY and SPAIN, JJ., concur.

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