Opinion
April 3, 1981
Appeal from the Chautauqua Supreme Court.
Present — Simons, J.P., Hancock, Jr., Doerr, Denman and Schnepp, JJ.
Orders unanimously modified, and, as modified, affirmed, without costs, in accordance with the following memorandum: Because the sale of stock which constitutes "marital assets" of the parties has the effect of finality, it is an improper disposition of assets on a motion for temporary relief. Such sale defeats the rights of the parties to receive or the court to make a maintenance and distributive award provided for by statute (Domestic Relations Law, § 236, Part B). The orders of Special Term are modified by striking from each that paragraph which directs the husband to sell certain stock. Similarly, it was an abuse of discretion to grant joint custody of the children without a hearing. The orders are further modified by granting temporary custody of the children to the wife, without prejudice to renewal at trial of the husband's application for joint custody. The matter is remitted to the Supreme Court, Chautauqua County, for an immediate trial. The resettled order of Special Term dated February 6, 1981, which is not a subject of this appeal, is to remain in effect until the trial is concluded and a final judgment made.