Judith La Porte, Respondent, v. George La Porte, Appellant

Judith La Porte, Respondent, v George La Porte, Appellant. (Appeal No. 1.) [MAJORITY] Judgment unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: Defendant appeals from a judgment of divorce, dated March 9, 1977, dismissing his counterclaim for divorce and granting divorce in favor of plaintiff, his former wife, and granting plaintiff $30 per week in alimony, $1,000 in counsel fees, and exclusive possession of the marital residence. We find support in the record for the grant of a divorce based on defendant’s cruel and inhuman treatment, and dismissal of his counterclaim, as well as for the award of alimony in the sum of $30 per week and counsel fees of $1,000. On the argument of the appeal, both parties stipulated in open court that the marital residence be sold and the proceeds divided equally between the parties. (See Sharer v Sharer, 60 AD2d 780.) Accordingly, the judgment should be modified by substituting for the sixth decretal paragraph the provision that the marital residence be sold and the proceeds divided equally between the parties. (Appeal from judgment of Oneida Supreme Court—divorce.) Present—Marsh, P. J., Cardamone, Dillon, Hancock, Jr., and Witmer, JJ.