Opinion
March 6, 1984
Appeal from the Supreme Court, Cattaraugus County, Crowley, J.
Present — Dillon, P.J., Hancock, Jr., Denman, Green and Moule, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Defendant husband appeals in part from an order modifying a 1977 judgment of divorce. The original decree awarded custody of the two children of the marriage to plaintiff. It also granted to her exclusive use and possession of the marital residence until she remarried or the children reached 21 years of age or were earlier emancipated, at which time the premises were to be sold. ¶ Since 1978 when the children left the marital residence and commenced living with defendant, plaintiff has lived alone in the three-bedroom home. On this motion defendant sought custody of the children and an order directing the sale of the marital premises and a division of the proceeds. In ordering that the parties have joint custody, Special Term directed that the children continue to reside with defendant but placed the younger child with plaintiff on alternate weekends. The court also continued plaintiff's use and possession of the marital home. Plaintiff has not appealed. ¶ In the circumstances presented, the order for joint custody of the younger child is in the child's best interests ( Eschbach v Eschbach, 56 N.Y.2d 167). The older child is now 18 years of age and the question of her custody is moot (Domestic Relations Law, § 2; Silverman v Silverman, 50 A.D.2d 824). ¶ We deem it inappropriate, however, to perpetuate plaintiff's exclusive use and possession of the marital home. Plaintiff is employed and self-sufficient. Since the children no longer reside with her, the intent and purpose of that provision of the judgment is no longer being served. The judgment is, therefore, modified so as to terminate such use and possession (see Domestic Relations Law, § 234; Portano v Portano, 85 A.D.2d 622; Corsentino v Corsentino, 67 A.D.2d 798), and the premises shall be sold as required by the judgment.