Krause v. Krause

• Decision Date: 22 August 1985
• Citation: 112 A.D.2d 862,493 N.Y.S.2d 142
• Parties: Robert L. KRAUSE, Plaintiff-Respondent, v. Gabrielle Gidion KRAUSE, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 142

493 N.Y.S.2d 142

112 A.D.2d 862

Robert L. KRAUSE, Plaintiff-Respondent, v. Gabrielle Gidion KRAUSE, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Aug. 22, 1985.

R.B. Shaw, New York City, for plaintiff-respondent.

M.D. Juvelier, New York City, for defendant-appellant.

Before MURPHY, P.J., and CARRO, ASCH, BLOOM and MILONAS, JJ.

MEMORANDUM DECISION.

Order of Supreme Court, New York County, entered February 15, 1985, which,inter alia, awarded plaintiff-respondent exclusive use of the Lake Sagamore residence in alternate months conditioned upon plaintiff's payment of a sum equal to the mortgage, utilities and taxes on said property for each month that he is in residence, is modified, on the law and facts, and in the exercise of discretion to strike that portion permitting plaintiff alternate monthly use of the Lake Sagamore residence, and otherwise affirmed, without costs or disbursements.

The parties herein were married in New York State in September 1975. In January 1985, plaintiff-husband sued for divorce alleging abandonment by defendant-wife. Defendant counterclaimed for divorce alleging adultery and cruelty by the plaintiff.

The husband moved for an injunction preventing the wife from selling the vacation home on Lake Sagamore in Putnam County and for an order granting him the right to use and occupy said property during the pendency of the matrimonial action. The husband alleged that although title to the property was solely in the wife's name, the property was purchased in March 1980 and was therefore marital property. During the marriage the couple used the Lake Sagamore property as a year-round vacation home, but after the parties separated, the wife refused to permit the husband to use the property. The husband alleged that he has made a substantial financial contribution to the property and was a co-obligor on the mortgage. The husband also claimed to have made several mortgage payments.

The wife challenged the husband's assertions, claiming that this vacation residence was her separate property purchased with a portion of the inheritance received from her mother's estate. She also maintained that the husband is not primarily obligated on the mortgage but is, at best, a guarantor and that any mortgage payments made by him were fully reimbursed by her. A mortgage commitment was issued by Chase Manhattan Bank in October 1979 to both parties. However, the actual mortgage is in the wife's name only. The wife also asserted that expenditures by the husband on the property were, in fact, reimbursements of monies which she had lent to respondent. The wife submitted a promissory note executed by the husband in the amount of $5,500 and bearing interest at a rate of 5% per annum as evidence of a loan to him in 1974, which he used to help pay for his divorce from his previous spouse. Moreover, the wife supported the husband and his youngest daughter from the prior marriage until he reestablished himself financially.

The wife also objected to the husband's request for use of the Lake Sagamore property because she alleged he had taken his girlfriend, who is named as co-respondent in the wife's counterclaim, to the vacation home and appellant had no wish "to be subjected to the indignities of...