Shifer v. Shifer

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County (Yancey, J.), dated July 27, 2004, as awarded the plaintiff a divorce, on consent, and awarded the plaintiff a distributive award in the sum of $1,825,000 representing her share of the parties’ marital property. Ordered that the appeal from that portion of the judgment which awarded the plaintiff a divorce is dismissed; and it is further, Ordered that the judgment is affirmed insofar as reviewed; and it is further, Ordered that one bill of costs is awarded to the plaintiff. The defendant contends that the Supreme Court erred in failing to allow him to contest the grounds for divorce at trial. However, the defendant’s appeal from that portion of the judgment awarding the plaintiff a divorce must be dismissed since the defendant, through a February 5, 2003 preliminary conference order, in effect, agreed to waive any challenge to the grounds for the divorce (see Tongue v Tongue, 61 NY2d 809, 810 [1984]; Vernon v Vernon, 10 AD3d 722, 723 [2004]; cf. Paul v Paul, 305 AD2d 565 [2003]; Matter of Brouwer v Pacicca, 291 AD2d 448, 449 [2002]). The fashioning of a distributive award based on the available evidence of the value of marital property was a proper exercise of the Supreme Court’s discretion (see Cohen v Cohen, 279 AD2d 599, 599-600 [2001]; Ferraro v Ferraro, 257 AD2d 596, 598 [1999]; Dempster v Dempster, 236 AD2d 582 [1997]). Crane, J.P., Krausman, Rivera and Dillon, JJ., concur.