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PEARL SHIFER, Respondent,
DAVID SHIFER, Appellant.

Appellate Division, Second Department
March 14, 2006.

Shifer v. Shifer
27 A.D.3d 549, 810 N.Y.S.2d 361

Crane, J.P., Krausman, Rivera and Dillon, JJ., concur.

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 N.Y.2d 809, 810 [1984]; Vernon v Vernon, 10 A.D.3d 722, 723 [2004]; cf. Paul v Paul, 305 A.D.2d 565 [2003]; Matter of Brouwer v Pacicca, 291 A.D.2d 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 A.D.2d 599, 599-600 [2001]; Ferraro v Ferraro, 257 A.D.2d 596, 598 [1999]; Dempster v Dempster, 236 A.D.2d 582 [1997]).

The case of Shifer v Shifer is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Shifer may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Shifer v. Shifer is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.

If you have any questions or comments, please feel free to contact Mr. Barics at or (631) 864-2600. For more articles and information, please visit