Plaintiff Cynthia L. Sullivan sued her husband John M. Sullivan for divorce on the grounds of cruel and inhuman treatment. This action was commenced by the filing of a Summons with Notice with the Broome County Clerk's Office on December 28, 2005. A non-jury trial was held on March 20, 2007.

With respect to the grounds for divorce, it is undisputed that the defendant had previously [*2]defaulted in appearance thereby entitling the plaintiff to a divorce by reason of cruel and inhuman treatment upon resolution of the outstanding equitable distribution issues.^[FN1] There are three children of the marriage, namely Sean P. Sullivan, Colleen M. Sullivan and Christopher T. Sullivan. Sean P. Sullivan was over 21 at the time of the trial in this action. Based upon the testimony and evidence presented at trial, the court deemed twins Colleen M. Sullivan and Christopher T. Sullivan, both just shy of their 20th birthdays, to be emancipated. As such, there are no issues of custody, visitation, or child support. At the commencement of trial the parties placed a partial stipulation on the record resolving all equitable distribution issues except one, namely the division of the marital residence, all of which will be discussed herein.

The parties were married on January 12, 1985 and separated in January of 2006. Thus, this is a long-term marriage of over 22 years duration. At the time of the trial, plaintiff Cynthia L. Sullivan, age 59, was employed as a nurse with the Broome County Health Department in Binghamton, New York earning approximately $50,000 per year. Defendant John M. Sullivan, age 55, is currently employed by the Town of Union Highway Department earning approximately $35,000 per year. Both parties are in good health.

DRL 236 (B) (5) (d) mandates that in determining equitable distribution of property the court shall consider various factors enumerated in the statute including, but not limited to, the income and property of each party at the time of marriage and at the time of the commencement of the action; the duration of the marriage and the age and health of both parties; and the probable future financial circumstances of each party.

1.Stipulation

As previously mentioned, the parties reached a stipulation at trial regarding all but one of the equitable distribution issues. Although the parties stipulation of the majority of the equitable distribution issues need not be repeated here verbatim inasmuch as it is set forth in the transcript of said proceedings, the court believes that a brief review of said stipulation will help place the discussion regarding the marital residence into context.

The parties agreed that the defendant would keep the 2000 Nissan Pathfinder sports utility vehicle and be fully responsible for any debt associated therewith, more specifically a loan with an approximate balance of $7,650. By the same token, the parties agreed that plaintiff would keep the 1999 Nissan Maxima and will be fully responsible for any debt associated therewith, specifically the outstanding loan balance of approximately $2,900. Each party shall retain all right, title and interest and sole and exclusive possession of their respective vehicle and [*3]will indemnify and hold the other party harmless for any liability associated with the corresponding debt.

The parties also agreed to keep any and all bank accounts currently in their own names. Defendant will keep the joint checking account so long as he removes plaintiff's name from the same or, in the alternative, defendant may close said account and reopen the checking account in his own name and transfer the full balance into that sole and separate account.

The parties further stipulated that the outstanding tax liability for the tax year 2005 currently owed to the Internal Revenue Service, approximately $1,094, would be divided equally. Further, plaintiff will pay the tax debt and defendant will be responsible for paying plaintiff $600 as his share of that 2005 tax liability.

With respect to the parties credit card debts, it was agreed that plaintiff will be solely responsible for payment of the Chase Visa credit card with an outstanding balance of approximately $3,479, while the defendant will be solely responsible for the American Express Blue credit card with an outstanding balance of approximately $3,300, as well as the Capitol One credit card with an outstanding balance of approximately $500.

The parties stipulated that neither was requesting any maintenance and that each was fully capable of being self-supporting. The parties also stipulated that each would keep their respective pensions and waive any interest in the pensions of the other party. Finally, the parties stipulated that they have divided any personal property to their mutual satisfaction.

2.Remaining Equitable Distribution Issue

The only issue of equitable distribution to be resolved by the court involves the disposition of the marital residence located at 1617 Airport Road, Binghamton, New York.

The property was purchased in June of 1992 for approximately $70,000. There is currently an outstanding mortgage on the property in the amount of $57,000 which is paid in $701 monthly installments. The parties resided in the marital residence with their three children until the plaintiff vacated the premises in January of 2006. From the time of purchase through January 2006, the expenses relating to the marital residence were shared equally between the parties.

From January 2006 through June 2006, plaintiff paid the monthly mortgage payment in full although she had vacated the residence. As of August 2006, the plaintiff has paid one-half of the mortgage payment.

The plaintiff testified that she would like to see the defendant keep the marital residence. The defendant agreed, testifying that he would like to remain in the marital residence, but expressed some concern that it might be difficult for him to afford the mortgage payments and related expenses. More specifically, defendant testified that at times some of his emancipated children live with him without contributing any assistance despite their own employment or ability to obtain employment. The court finds that those issues are solely within the defendant's control and that if he chooses to let any his emancipated children live with him then they should be required to pay their appropriate share of expenses, rent, etc. That having been said, the court [*4]finds that the defendant should keep the marital residence and hereby awards the marital residence to defendant. The outstanding mortgage and all related debts are hereinafter the sole responsibility of defendant. To that end, defendant shall refinance the residence solely in the defendant's name and indemnify and hold the plaintiff harmless with regard to any liabilities, expenses or taxes associated with the residence. If the defendant is unable to refinance said residence within six months, then the marital residence should be listed for sale and all proceeds of the sale, after covering the expenses of the mortgage, shall be the sole and exclusive property of the defendant.

By reason of the foregoing, plaintiff is entitled to a judgment dissolving the marriage of the parties on the grounds of the defendant's cruel and inhuman treatment of her and said judgment shall further provide for the distribution of the marital assets and apportionment of liabilities in accordance with the parties stipulation and as directed herein.

Plaintiff shall submit a judgment, on notice to the defendant, pursuant to Section 202.48 of the Uniform Rules of Trial Courts within sixty days.

Dated:March 29, 2007

Binghamton, NYs/Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court