
    Nathalie Housset, Respondent, v Pascal Housset, Appellant.
    [606 NYS2d 680]
   —Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered October 5, 1992, which, inter alia, awarded the plaintiff custody of the parties’ children, unanimously affirmed, without costs; and amended judgment of the same court and Justice, entered January 11, 1993, which distributed the parties’ marital property, unanimously modified, on the law, the facts and in the exercise of discretion, to remit for a determination, after a hearing, the amount of marital funds taken by the plaintiff from the parties’ joint bank account, rental payments received and money that was to be used to reduce their mortgage, and upon such determination, to distribute the amount evenly among the parties, and that portion of the amended judgment awarding the defendant a $9800 credit for such funds is vacated, and otherwise affirmed, without costs.

The Supreme Court’s conclusion that custody in the plaintiff would serve the best interests of the children is supported by the evidence (Friederwitzer v Friederwitzer, 55 NY2d 89). The plaintiff had been a full-time mother and the children’s primary custodian. Although the parties were married in France, and the husband has decided to return there, they have lived in New York since early 1981 and their children were born and raised here.

The court properly sought to effectuate the French prenuptial agreement which required an equal division of assets (Domestic Relations Law §236 [B] [5]). However, the judgment must be modified since the court awarded the defendant only a $9800 credit representing one-half of the marital funds taken by the plaintiff in anticipation of divorce. She conceded in testimony taking more than double that amount from money received from rental payments, as well as from that sent by her husband to reduce their mortgage. A hearing is necessary to determine the exact amount taken by her, including funds from the parties’ joint bank account, which is subject to equal division. Concur — Rosenberger, J. P., Ellerin, Kupferman and Rubin, JJ.  