Opinion
June 9, 1975
In an action in which the plaintiff wife was granted a judgment of divorce by the Supreme Court, Kings County, entered November 6, 1974, defendant appeals, as limited by his brief, from so much of the judgment as (1) awarded plaintiff alimony, child support and a counsel fee, (2) made an adjudication with respect to certain chattels and a certain bank account and (3) failed to make provision with respect to certain securities. Judgment modified, on the law and in the exercise of discretion, by adding thereto the following provisions: (1) the parties are directed to join in the sale of all jointly owned securities and equally divide the proceeds of such sale; (2) plaintiff is directed to return to defendant any securities in her possession which are solely in defendant's name; and (3) upon execution by defendant of all documents necessary to release the Greenpoint Savings Bank account in plaintiff's name, plaintiff shall deliver to defendant one half of any funds presently on deposit therein. As so modified, judgment affirmed insofar as appealed from, without costs. The trial court in the exercise of discretion should have made provision for distribution of the assets which are jointly owned by the parties and are presently in plaintiff's possession. Although defendant did not formally request such relief at the trial, it would be a hardship to require the parties to absorb the additional costs of a plenary action concerning that at this time. The trial court did dispose of other property claims in this action and was aware of defendant's claims as to the joint assets. In addition, defendant appears to be having difficulty in meeting the payments required by the judgment under review on his present income, and a division of assets should alleviate this indebtedness to a great extent. Martuscello, Acting P.J., Cohalan, Christ, Munder and Shapiro, JJ., concur.