100 A.D.2d 643 | N.Y. App. Div. | 1984
Appeal in action No. 2 from a judgment of the Supreme Court in favor of plaintiff, entered March 7, 1983 in Washington County, upon a decision of the court at Trial Term (Clyne, J.), without a jury. HThe history of this decade-long matrimonial dispute is recorded in Hickland v Hickland (79 AD2d 736), Hickland v Hickland (46 AD2d 954, mod 39 NY2d 1, cert den 429 US 941) and Hickland v Hickland (46 AD2d 1, mot for lv to app den 35 NY2d 646). This appeal by Richard Hickland, his present wife Sandra Hickland and his sister Adelaide Eaton from an order entered in a partition action, which has been consolidated with a divorce action brought by Richard against Alice Hickland, brings up for review the disposition of the proceeds of a sale, made pursuant to court order in the divorce action, of a parcel of property previously held by Richard and Alice as tenants by the entirety. The parcel of property, which is known as the “Argyle Farm”, is located in the Towl of Argyle, Washington County. Although the sale has not as yet been consummated, apparently because of Richard’s refusal to convey his interest, the buyer after tendering the purchase price of $120,000 was awarded a default judgment against Richard for specific performance. 11 After directing payment of various fees and expenses associated with the sale of the Argyle Farm, one half of the remaining proceeds are to be paid to Alice free and clear of any liens; the other half is to be paid to Richard subject to the payment of specified judgments, including judgments in Alice’s favor totaling approximately $15,900, representing alimony and child support arrearages. Default judgments for nonpayment of support obtained by Sandra against Richard while living with him were not honored by the court and a judgment secured against Richard by Eaton was respected only to the extent of $15,000. Eaton has a judgment for $65,809.72, $15,000 of which represents the unpaid balance of a 1969 loan to Richard, which allegedly supplied the funds enabling him to purchase the Argyle Farm. The balance comprises expenditures for improvements and repairs to the Argyle farmhouse incurred after July, 1972, when Richard had conveyed the Argyle Farm as well as properties at Cossayuna Lake and in the Town of Salem to his sister, after Alice, pursuant to a separation agreement, had transferred her interest as a tenant by the entirety in all three properties to him. In November, 1973, the separation agreement was rescinded and Richard and Alice were restored to the status of joint owners of all the properties, the transfer to Eaton having been found to have been illusory (Hickland v Hickland, 46 AD2d 1, supra). Richard, Sandra and Eaton have each appealed; they object to Trial Term’s procedural handling of the matter as well as the adjudged apportionment. Eaton also maintains that she has an equitable lien on the Argyle Farm for both the loan and the cost of improvements. K Eaton contends that the trial was procedurally defective because the trial court failed to order a reference to determine whether there were any creditors that might be affected by the sale and because she was entitled to a jury trial. Subdivision 1 of section 913 of the Real Property Actions and Proceedings Law provides that “the court shall ascertain, by reference or otherwise” whether any creditor who is not a party has a lien; thus, a reference may not be mandatory. In any event, since this issue was not advanced earlier and there is no showing that any creditor was prejudiced, the interest of justice does not require an exception to the salutary rule which prohibits the raising on appeal of an issue which was not presented below (Antinelli v Toner, 74 AD2d 996, 997). Nor was a jury trial required. Eaton waived that right when she asserted equitable counterclaims which relate to and emanate from the same set of facts as does the main claim (Academy St. Realty Corp. v Young, 25 AD2d 435; Siegel, 1966 Supplementary Practice Commentaries, McKinney’s