—In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered October 16, 2000, as denied that branch of his motion which was for an award of 35% of the net proceeds from the sale of the marital residence, less certain allowances.
[474] Ordered that the order is affirmed insofar as appealed from, with costs.
The parties were married in 1968 and have two children who are 31 and 30 years of age. The parties have not lived together since 1980. On October 20, 1987, a Judicial Hearing Officer held an inquest and determined that the wife had been abandoned by the husband. On the date of the inquest, the parties entered into a stipulation of settlement on the record which provided for, inter alia, equitable distribution, child support, counsel fees, and the children’s education. However, a judgment of divorce was never submitted to the court for signature and, as of the date of the entry of the order appealed from, a judgment of divorce still had not been entered.
At the time of the settlement, the parties owned a marital residence in Katonah as tenants by the entirety. The house was purchased in 1978 for $270,000 and had a fair market value of approximately $1,500,000 on the date of the settlement. The husband was in a distressed financial condition at the time of the settlement, with assets of less than $100,000 and judgments in excess of $2,000,000 which encumbered his then undivided one-half interest in the Katonah property.
Under the terms of the stipulation, the wife was awarded exclusive occupancy of the marital premises for 10 years unless the husband satisfied the judgments of approximately $2,000,000 by March 1, 1998. The agreement provided that the premises would eventually be sold, with the proceeds of the sale divided 65% to the wife and 35% to the husband, with certain liens on the property satisfied out of the husband’s share of the proceeds. However, the agreement provided that if the wife succeeded in obtaining a settlement with all of the lien holding creditors, she was permitted to sell the premises without the husband’s consent and retain all proceeds except certain funds which were to be placed in trust for the children’s education. Under the agreement, both parties waived any rights in property acquired by the other spouse after the date of the stipulation.
In 1993 the wife purchased the husband’s interest in the marital residence at a sheriffs sale to satisfy the husband’s liens on the property. At the time of the sheriffs sale and for almost seven years thereafter, the husband did nothing to settle the judgments, assert an interest in the property, or compel its sale. In June 2000, the wife sold the property for in excess of $5,000,000. The husband moved for an order granting him 35% of the net proceeds from the sale of the property. The
[475] Supreme Court denied the husband’s application, ruling that the wife was entitled to 100% of the proceeds from the sale of the property. We agree.
The stipulation of settlement entered into by the parties on October 20, 1987, which has never been vacated and remains binding, made provision for several eventualities, including the wife’s settlement with the lienholders. In 1993 the Katonah residence was marital property. The wife’s participation in the sheriffs sale in which she purchased her husband’s interest therein to satisfy the liens constituted a settlement with the creditors under the terms of the stipulation. At that juncture, the husband’s interest in the tenancy by the entirety merged with the wife’s, and she became the sole owner (see V.R.W., Inc. v Klein, 68 NY2d 560). Under the after acquired property provision of the agreement, the husband has no right to any of the proceeds from the sale of what was formerly his share of the marital residence.
The provision in the stipulation requiring a portion of the funds to be placed in trust for the children’s education is no longer relevant, since the children are emancipated and have completed their educations, which were completely funded by the wife.
Accordingly, since the Supreme Court correctly determined that the wife was entitled to 100% of the proceeds of the sale of the property, there is no need to remit this matter for a determination of equitable distribution. Feuerstein, J.P., McGinity and H. Miller, JJ., concur.
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