Freeman v. Freeman

Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: Supreme Court erred in nullifying the agreement executed by the parties on May 30, 1979, titled "Agreement Rescinding Separation Agreement” because *890the record does not demonstrate that defendant abandoned the agreement (see, Staebell v Bennie, 83 AD2d 765). Accordingly, the court’s conclusion that the "home farm”, the Freeman Cycle Ranch, Inc., and the Robinson farm were marital property subject to equitable distribution was erroneous (see, Domestic Relations Law § 236 [B] [1] [d] [4]). In our view, the court properly determined that the parcels of real property known as the Guentner farm, the Ricci farm and the Boyle farm constituted marital property subject to equitable distribution (cf, Strader v Strader, 91 AD2d 852).

In view of our determination, we remit the case to the trial court to reconsider the equitable distribution of the parties’ marital property and, if it deems it necessary, to take additional proof on this issue. Since the equitable distribution of the marital property is a factor to be considered by the trial court in determining whether to award maintenance (see, Domestic Relations Law § 236 [B] [6] [a] [1]), the trial court may reevaluate its denial of maintenance to plaintiff, if it is deemed warranted. Finally, since the trial court, in exercising its discretionary authority to award counsel fees, must consider the relative financial circumstances of the parties (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881), the court, upon its redetermination of the equitable distribution of the marital property, may, if warranted, reconsider its award of counsel fees. In all other respects, the judgment is affirmed. (Appeal from judgment of Supreme Court, Orleans County, Wolf, J.—divorce.) Present—Boomer, J. P., Green, Pine, Balio and Davis, JJ.