Opinion
May 25, 1972
Appeal from the Erie Trial Term.
Present — Marsh, J.P., Witmer, Gabrielli, Cardamone and Henry, JJ.
Judgment unanimously modified on the law and facts in accordance with memorandum and as so modified affirmed, with costs to plaintiff-respondent. Memorandum: The judgment correctly granted plaintiff a divorce, custody of the child of the parties and alimony but erroneously ordered transfer by defendant to plaintiff of real property owned by the parties as tenants by the entirety. The record presents no question regarding title to the property which had been vested in both parties since January 6, 1964. The provision of section 234 Dom. Rel. of the Domestic Relations Law which permits the court to make a direction between the parties in a divorce action concerning the possession of property does not empower the court to order transfer of title of the property from one party to the other. ( Miralles v. Miralles, 56 Misc.2d 789.) ¶ In a prior action between the parties for a judgment of separation an order was entered granting $500 as counsel fees to Walter D. Bowman who was plaintiff's attorney in that action. The judgment herein erroneously grants judgment for that amount to attorney Bowman. There is no basis in the record for this provision of the judgment, and it should be deleted therefrom without prejudice to any action plaintiff or Bowman may wish to take for the enforcement of said order. ¶ The trial court's finding that a Mexican divorce judgment obtained by defendant on April 28, 1969 is invalid is sufficiently supported by the evidence. ¶ The judgment should be modified by deleting the fifth, sixth, seventh, eighth, ninth and tenth decretal paragraphs thereof.