Opinion
December 22, 1980
Consolidated appeals (1) by the former husband from an order of the Supreme Court, Queens County, dated February 25, 1980, which denied his application for partition of the former marital residence or the payment of 50% of a reasonable rental therefor; and (2) by the former wife from an order of the Family Court, Queens County, dated April 28, 1980, which, inter alia, dismissed her petition seeking an increase in the amount of child support. Orders affirmed, without costs or disbursements. The parties in their separation agreement expressly gave to the wife exclusive possession of the marital residence. Upon their divorce six weeks later, the divorce decree adopted this provision and further provided that the agreement would survive and not merge into said decree. Subsequently, the wife remarried and her new husband moved into the former marital residence. Sometime later, an application was made by the former husband, inter alia, for partition of the residence. We agree with Special Term that the phrases "exclusive possession" and "exclusive right to occupy" as used in the separation agreement were intended to provide the wife with the right to occupy the premises to the exclusion of her former husband and not of third persons if she so chose. Thus, the former husband, as tenant in common, cannot compel partition of the property since such an action would violate the parties' agreement (see Orologio v. Orologio, 82 Misc.2d 1022; cf. Ripp v. Ripp, 32 N.Y.2d 755, affg 38 A.D.2d 65, 69, on opn at App. Div.; Contractual Provisions as Affecting Right to Judicial Partition, 37 ALR 3d 962). On the question of a denial of upward modification of child support we find that the case of Matter of Boden v. Boden ( 42 N.Y.2d 210) is dispositive. Mollen, P.J., Cohalan, O'Connor and Weinstein, JJ., concur.