Opinion
December 17, 1982
Appeal from the Supreme Court, Monroe County, Reed, J.
Present — Dillon, P.J., Hancock, Jr., Doerr Denman and Boomer, JJ.
Judgment unanimously modified, on the law and facts, and, as modified, affirmed, without costs, in accordance with the following memorandum: The judgment of divorce is modified by deleting the fifth decretal paragraph which grants the wife exclusive possession of the marital residence, and by substituting therefor a direction that it be sold, and the net proceeds equally divided ( Sharer v Sharer, 60 A.D.2d 780). Unless some unusual circumstances exist, the sale of the marital home should be ordered at the time of the making of the judgment. Only where one spouse has demonstrated an overriding need to occupy the marital premises, is an award of exclusive possession proper ( Ripp v Ripp, 38 A.D.2d 65, affd 32 N.Y.2d 755). Exclusive possession is usually granted to the spouse who is awarded custody of the minor children of the marriage (see Wurm v Wurm, 87 A.D.2d 590, app dsmd 56 N.Y.2d 886; Weseley v Weseley, 58 A.D.2d 829). Here, the children living with the wife are adults and they may not remain in the residence for long. Moreover, the husband should not be compelled to subsidize his adult children by providing living quarters for them. Based upon the record before us, and taking into consideration the sale of the house and the division of the proceeds, we find that the award of $75 per week alimony is appropriate. Because, however, it is difficult to predict what the expenses of the wife will be after the house is sold, and the husband's income might have changed since the divorce was granted almost two and one-half years ago, either party may move to modify the decree to meet the circumstances then existing. The award of attorney's fees to the wife was proper in view of the relative assets of the parties. Finally, we find that the court properly denied the husband a divorce on his counterclaim.