JL v. AL
| Decision Date | 15 September 2010 |
| Citation | 2010 N.Y. Slip Op. 51640,958 N.Y.S.2d 308,28 Misc.3d 1239 |
| Parties | JL, Plaintiff, v. AL, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Heath Berger, Esq., Woodbury, Attorney for Plaintiff.
Kenneth J. Weinstein, Esq., Garden City, Attorney for Defendant.
Patricia Latzman, Esq., Washington, Attorney for the Children.
Pursuant to a Decision and Order of this Court dated June 16, 2010, the matter was set down for a hearing regarding (I) the exclusive use and occupancy of the marital home located at XXXXXX, N.Y. and (ii) the custody of the two (2) children. The hearing was conducted on July 27, 2010 and August19, 2010.
The parties were married on November 25, 1988 and have two unemancipated children whom are now fifteen (15) years old. Husband is 53 years old and is a self-employed business owner. Wife is 51 years old and states she is a homemaker. Husband resides with the parties' children in the marital home.
It is undisputed that Wife has a long history of alcoholism with numerous visits to treatment centers as well as numerous relapses. In the summer of 2008, Wife entered into a treatment program in Palm Beach, Florida. It is uncontroverted that Wife remained in Florida until February/March of 2009. At that time, Wife moved back to New York. It is uncontroverted that Wife did not return to the martial residence, but instead resided in a house near the martial residence. Admittedly, Wife had several more relapses during that time. In August of 2009, she returned to Florida to obtain treatment again. In November of 2009, Wife admits to yet another relapse. However, she avers that she has been sober since that time.
On March 25, 2010, the Hon. Michele Woodard issued a Temporary Restraining Order (“TRO”) prohibiting Wife from accessing or entering the marital residence. It was further ordered that if Wife decided to return to New York, Husband was directed to pay for housing/rent equal to or less than a stay at the Garden City Hotel. On or about May 20, 2010 this Court continued the TRO and preliminarily enjoined the Wife from accessing or entering the marital residence except as provided in a Stipulation entered on May 25, 2010, “so ordered” by this Court, to provide defendant access to visiting her children.
The plaintiff testified that the defendant's initial attempt for help with her drinking problem was May 2005 and since then has been admitted to various hospitals or detoxification programs at least seven (7) times. However, most of his testimony regarding the defendant's alcohol problem was focused upon the past two (2) years. It appears from the plaintiff's testimony, that the defendant sought treatment in recent times on at least four (4) occasions and during that time she spent most of the two (2) years in alcohol related programs and/or away from her children, while the plaintiff cared for them.
Plaintiff testified that as a result of the defendant's alcohol problem, she was admitted to Glen Cove Hospital in late January, early February 2008 for a detoxification program. In March 2008 the defendant finished the detoxification program and was welcome back to the marital residence. Thereafter, the defendant participated in an out-patient program at Kenneth Peter Center located in Syosset, N.Y. for a period of three (3) weeks, between March and April 2008.
Plaintiff also testified that in June 2008 the defendant left the house again and was enrolled in Veritas Villa, in Kerhonkson, N.Y. as an in-patient for a twenty-eight (28) day alcohol rehabilitation program and thereafter returned to the marital residence in July 2008.
Plaintiff testified that toward the end of July 2008 the defendant was admitted in Florida as an in-patient for ninety (90) days and thereafter as an out-patient from November 2008 through February or March 2009. Plaintiff testified he visited the defendant while she was in Florida. During this period of time the plaintiff testified he continued to care for his two (2) children, making sure they attended school, helped with the homework, and cooked for them.
When defendant returned to New York, sometime in February 2009, plaintiff testified he told her that it was not a good idea to move back into the marital residence and thereafter it appeared the defendant agreed to find a house in XXXXXX, N.Y. to live close to her children and the plaintiff paid the rent. The defendant resided at the XXXXXX house from February 2009 through July 2009. The defendant was permitted contact with the children, but overnights were not permitted.
In July 2009 plaintiff testified he again took defendant to Glen Cove Hospital for alcohol detoxification rehabilitation and for another twenty-eight (28) day rehabilitation at Veritas Villa, NY. Thereafter, the defendant was enrolled in Graditute House in Florida from August 2009 until October 2009. The defendant remained in Florida until April 2010 when she decided to come back to New York where plaintiff paid for her to stay at the Fox Hollow Hotel in Woodbury, NY.
On cross-examination, the plaintiff testified the defendant's alcohol problems started around May 2005. Plaintiff also testified he is an electrical contractor with approximately thirty-five (35) employees and usually worked Monday through Friday between 6:30 am to 4:00 pm. Plaintiff further testified his cousin's daughter who was twenty-one (21) years old, stayed overnight during the week and made sure the children were placed on the school bus in the morning. Also during the Summer, the children attended summer camp. In addition to the foregoing, the plaintiff had hired a contractor to renovate his home, which project took approximately three (3) years and the contractor was in the marital residence after school to make sure the children arrived home from school. Although not an ideal situation, given the age of the children (15), it seems the plaintiff did the best he could under the circumstances.
Plaintiff also testified that around August 2008 he started dating and he advised his children of same. He also testified he did not restrict the defendant from seeing the children, only that he did not want the defendant to stay at the house. The defendant was given access to the back yard and use of the pool with the children.
Even though plaintiff testified he did not want the defendant to move back in to the marital residence there were a few occasions where the plaintiff did allow the defendant to visit and stay over night on a limited basis, such as:
October 2009 over a weekend for the children's birthdays;
January 1, 2010 for four or five days regarding a play the children were performing in;
February 2010 for a period of two weeks;
March 2010 for four or five days due to some dental procedures defendant needed.
Plaintiff, during cross examination, admitted that on or about March 27, 2010 he made an application to the Court to prevent the defendant from returning to the marital residence because he felt the defendant's presence in the marital home would be unsafe and not in the best interest of the children.
At the conclusion of plaintiff's testimony, the plaintiff rested and defendant made an application to dismiss which this Court reserved decision. Thereafter, the defendant, without calling any witnesses rested and advised this Court that defendant did not want to be heard regarding the custody portion of this hearing.
Pursuant to DRL § 234, courts are statutorily empowered to award temporary exclusive possession of the marital residence to one of the parties. DRL § 234, states in relevant part:
Title to or occupancy and possession of property. In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment.
In general, the standard for awarding one spouse exclusive use and occupancy of the marital residence occurs where (1) one spouse has voluntarily established an alternative residence and the spouse's presence has caused domestic strife (Kristiansen v. Kristiansen, 144 A.D.2d 441, 534 N.Y.S.2d 104 [2nd Dept.1988] ); or (2) showing that such relief is necessary to protect the safety of persons and property (see, Waldeck v. Waldeck, 138 A.D.2d 373, 525 N.Y.S.2d 656;Goodson v. Goodson, 135 A.D.2d 604, 522 N.Y.S.2d 182;Wesler v. Wesler, 133 A.D.2d 627, 519 N.Y.S.2d 735;Tillinger v. Tillinger, 120 A.D.2d 584, 502 N.Y.S.2d 493;Blumenfeld v. Blumenfeld, 96 A.D.2d 895, 466 N.Y.S.2d 63;Harkavy v. Harkavy, 93 A.D.2d 879, 461 N.Y.S.2d 421;Hite v. Hite, 89 A.D.2d 577, 452 N.Y.S.2d 235;Siegal v. Siegal, 74 A.D.2d 867, 426 N.Y.S.2d 40;Scampoli v. Scampoli, 37 A.D.2d 614, 323 N.Y.S.2d 627).
In the instant action, it is undisputed that the defendant has had significant difficulties with alcoholism for the past several years. According to the plaintiff's uncontroverted testimony, from early 2008 through early 2010 the defendant spent most of her time in either alcohol related programs or living in separate residences.
Counsel for defendant argues that for the purpose of determining if the defendant voluntary vacated the martial residence, this Court should not consider the time the defendant was in treatment for her alcoholism and that this Court should view defendant's treatment the same way this Court would view the treatment of any spouse who had a disease and needed medical treatment. Assuming arguendo, th...
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...v. Minnus, 63 AD2d 966 (2nd Dept.1978). Subsequent cases described the precondition for "exclusive use" as "domestic strife." JL v. AL, 28 Misc 3d 1239 (A) (Sup. Ct. Nassau Cty. 2010). The Second Department later added a judicial gloss on Section 234, holding that if one spouse had an alter......