Parry v. ParryParry v. Parry
— Judgment unanimously modified by striking the sixth decretal paragraph and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Oneida County, for further proceedings, in accordance with the following memorandum: The parties were married on September 6, 1964 and have two minor children. Defendant is a practicing attorney; plaintiff, since the onset of her marital difficulties, has become a real estate salesperson. She commenced this action for divorce in September, 1978 and defendant served an answer and counterclaim in July, 1979. At the beginning of the trial the parties stipulated to the granting of a dual divorce; defendant withdrew his answer, plaintiff withdrew her reply to the counterclaim and both parties testified in order to establish their respective allegations. It was also stipulated that plaintiff would have custody of the children and exclusive possession of the marital residence. The major dispute, therefore, involved the financial settlement. During the course of their testimony on their respective liabilities and assets, both parties referred to joint bank accounts. Plaintiff testified that at one time there had been four or five joint bank accounts, that she had signed deposit cards showing “Frank A. or Marie C. Parry,” that she had the passbooks but had never contributed to the accounts and that after their marital problems began, the bankbooks disappeared. She said that she subsequently discovered that the accounts had been changed to delete her name. During defendant’s testimony, in response to inquiry from the court, defendant initially claimed that the joint accounts had been depleted but subsequently indicated that he had transferred approximately $55,000 to accounts in the name of his brother and sister to be held for the children. He had not listed this money as an asset on the financial statement submitted to the court, but admitted that he had access to it. In a written decision the court determined that “[t]he transfer of the money from the bank account in the sum of $55,000 is money for which Mrs. Parry would be entitled to share under the rules of Equitable Distribution because the record indicates that this money was accumulated during the course of the marriage. Under the circumstances, a fair and equitable distribution is to turn the marital residence over to the wife and permit Mr. Parry to keep the cash.” Consequently, the judgment directs defendant to convey his right, title and interest in the marital residence to plaintiff. It further directs defendant to pay the sum of $75 per week per child until the children are either emancipated or have finished their education, and to pay their medical and dental expenses. Both parties initially appealed from the judgment but plaintiff has withdrawn her appeal. It was clearly error for the court to apply the Equitable Distribution Law (Domestic Relations Law, § 236, part B) to this proceeding inasmuch as it was instituted in September, 1978 and the provisions of the Equitable Distribution Law did not become effective until July 19, 1980 (see Pollack v Pollack,