Opinion
October 23, 1995
Appeal from the Supreme Court, Suffolk County (Berler, J.).
Ordered that the order is affirmed, with costs.
The April 1979 judgment of divorce and August 1978 stipulation of settlement, which was incorporated into but did not merge with the judgment of divorce, granted the former wife exclusive occupancy of the marital residence until the parties' oldest child reached 18, at which time the marital residence was to be sold at its then-prevailing fair market value and the proceeds divided evenly between the parties. The wife remarried in 1979 and lived in the marital residence thereafter with her second husband and a child of that union. The divorce judgment was silent which respect to the parties' responsibilities for payment of the carrying charges for the marital residence. Therefore, with respect to the time period during which the wife was awarded exclusive possession, i.e., until the parties' oldest child turned 18, the wife is not entitled to a credit for those expenses (see, Martin v. Martin, 82 A.D.2d 431). Moreover, once the wife's exclusive possession of the marital residence terminated pursuant to the judgment of divorce her continued occupancy of the parties' former marital residence by herself and her second family effectively ousted the defendant from possession and enjoyment thereof and the wife became responsible for any charges assessed against the premises, including payments for the mortgage, taxes, repairs, etc. (see, Topilow v. Peltz, 25 A.D.2d 874; see also, Johnston v. Martin, 183 A.D.2d 1019, 1021; Worthing v. Cossar, 93 A.D.2d 515, 518, 519; cf., Haberman v Haberman, 216 A.D.2d 525).
The divorce documents also provided that the court retain jurisdiction of this matter so that it might make further decrees with respect to exclusive occupancy of the marital residence. Upon the husband's application in 1994, the court determined that an order for "exclusive occupancy jointly" was proper because it would further the parties' intent to sell the premises at fair market value.
The wife's remaining contentions are without merit. Bracken, J.P., Rosenblatt, Krausman and Goldstein, JJ., concur.