L.M.L. v. H.T.N.

• Decision Date: 03 October 2017
• Docket Number: No. 17/7645.,17/7645.
• Citation: 68 N.Y.S.3d 379 (Table)
• Parties: L.M.L., Plaintiff, v. H.T.N. a/k/a H.T.N., Defendant.
• Court: New York Supreme Court

68 N.Y.S.3d 379 (Table)

L.M.L., Plaintiff,

v.H.T.N. a/k/a H.T.N., Defendant.

No. 17/7645.

Supreme Court, Monroe County, New York.

Oct. 3, 2017.

Alexander Korotkin, Esq., Rochester, Attorney for Plaintiff.

Jonathan C. Trotto, Esq., Rochester, Attorney for Defendant.

Matthew D. Nafus, Esq., Rochester, Attorney for the Child(ren).

RICHARD A. DOLLINGER, J.

Confronting a request for exclusive use and possession of a marital residence, during the pendency of an action, is a trial for any judge. The balancing of parental interests—property rights of a titled spouse, financial costs of dislocation and the strain of two households on a family budget, uprooting a parent without a full hearing on the merits of who is responsible for the hostile environment in the home—is an Augean challenge.

But, in a state which reveres the best interest of children as the touchstone for judicial determinations in family matters, those interests must trump any other parental interests if a hostile and abusive environment persists in the home during the pendency of a divorce action and the only available remedy to quiet the turmoil is removal of a parent.

In this matter, a wife asks this court for "exclusive use and possession" of the marital residence. The residence is owned jointly by the husband and wife as tenants by the entirety. The couple have two sons, ages 12 and nine. The husband and wife, in affidavits before this court, present contrasting visions of what occurs in the home. The wife contends that she is the primary caretaker and supports the home life. The wife contends that the husband's actions "make it unsafe and inappropriate for the couple to reside together." She characterizes her husband as having a violent temper and claims he starts fights, at one point threatening her with a knife. She states her children have begun sleeping in her bedroom to protect her from the husband. She states that she "is afraid for [her] safety." In her application, the wife attaches to her affidavit a police report from more than two years ago, which details an incident at that occurred at the home. This court declines to credit any of the facts contained in it in this proceeding, as it is hearsay. Wynn v. Motor Veh. Acc. Indem. Corp ., 137 AD3d 779 (2nd Dept.2016) (information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under some other hearsay exception). But, the court does give credit to the fact that it was filed as evidence that law enforcement has responded to this home in the past and that marital strife has existed in this household for some time prior to the initiation of the divorce and the two sons have been exposed to it.

The husband contests nearly every allegation made by his wife. He states that he is the primary caretaker of the sons since birth. He states that he takes the children to appointments, swim lessons, stay with them when they are sick and spends time with them on summer vacations. He alleges that his wife is an alcoholic. He admits that he has participated in verbal arguments with his wife, but he states—uncontradicted—that he never was physically violent towards her.¹ The husband recounts that his wife threatened to kill him and adds another incident in which a man took a picture of him from a drone and threatened to post the picture on Facebook. He said he was afraid that this man was following up on the wife's threat to have him killed. As if the facts were not controverted enough, the wife submitted a reply affidavit, which she denies the substantive allegations and uses the word "false" 22 times when responding to the husband's allegations.

The attorney for the sons filed an affidavit in support of the wife's application, noting that his clients described their mother as their primary caretaker. The children have told their counsel that the home is a "very stressful environment" and the situation is "unhealthy." The attorney adds that the children told him that they have seen and heard angry confrontations between their parents and at night they sometimes lock their bedroom doors due to safety concerns. The attorney comments that the sons are "very anxious about the current living conditions" and, he concludes, "a continuation of the status quo is not in their best interests." Importantly, the sons want to share time with both parents: they just oppose both parents living under the same roof while the divorce progresses. Although the attorney for the child's affidavit contains hearsay, it does corroborate the husband and wife's accounts of verbal fights and arguments in this home. Matter of Christine TT. v. Dino UU., 143 AD3d 1065 (3rd Dept.2016) (noting that a child's testimony, conveyed through a Lincoln hearing can be utilized to corroborate a parent's version of facts); accord Matter of Rush v. Roscoe, 99 AD3d 1053 (3rd Dept.2012) (12–year–old child); see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273 (1969). In short, while there are sharply contrasting views on who is responsible for what happens in this household, one undisputed fact emerges: the house is rife with arguments, verbal fights, flared tempers, threats, claims of alienation, "sexual manipulation" (according to the husband) and allegations of damage to personal property.

In considering the facts in this application, two other factors need to be considered by the court. The husband claims he wants to purchase the house and it would uneconomical for him to move from the house and then move back in when he later purchases the house. The wife makes the same argument and she also seeks to purchase the house and, because she has a higher salary than the husband, claims she can afford to do so. In a pre-motion argument over the need to separate this disputatious couple, the court suggested that one of the parents secure a significant sum, advance it to the other to allow a relocation and take that payment as a credit or partial credit against eventual equitable distribution. The wife's attorney suggested she could raise $10,000 to finance the husband's relocation and, when this motion was heard by the court, the wife's attorney confirmed that she had made these funds available to be paid over to the husband if he promptly vacated the marital residence. The second factor was that the husband, until recently and even at the time of the motion return date, worked nights. After oral argument, the husband presented the court with a statement from his employer indicating that he had been assigned to the day shift. In the court's view, this change eliminates one hurdle to resolving the pending issue, but the availability of the husband at the home, is not decisive in the court's final determination.

The resolution of the wife's application requires a detailed analysis of the standards for granting exclusive use and occupancy pendente lite in New York and, in this court's view, a refined re-examination of those precedents in view of the compounding evidence that existence of a hostile home environment, during a divorce, runs contrary to the best interests of children. New York's Domestic Relations Law permits a court to 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." DRL § 234. The statute, in the second sentence of Section 234, expressly permits a court to make these "directions ... from time to time before or subsequent to final judgment." Leibowits v. Leibowits, 93 A.D.2d 535, 550 (2nd Dept.1983) (discussing the legislative intent in Section 234 ). Section 234 was derived from Section 1164–a of the now-defunct Civil Practice Act, which was designed to "prevent any injustice which might arise as a result of a spouse's continued rights as a tenant by the entirety notwithstanding a judicial decree of separation." Kahn v. Kahn, 43 N.Y.2d 203, 208 (1977) (explaining the history of the statute).² In 1960, a trial court judge who later ascended to the Court of Appeals, Bernard S. Meyer, analyzed Section 1164–a of the then Civil Practice Act, seeking guidance on whether to exclude a husband from a home he owned with his wife because he threw his glasses at his wife, chased her down their street in the middle of the night and later assaulted her.³ Borrowing from an American Law Reports annotation, Justice Meyer concluded that a party could be excluded from the marital domicile if there was "an immediate necessity to protect the safety of persons or property." Mayeri v. Mayeri, 26 Misc.2d 6, 8 (Sup.Ct. Nassau Cty.1960).⁴

Two years later, the Legislature, perhaps reading of Justice Meyer's frustration with a lack of legislative guidance, enacted DRL Section 234. The new statute gave courts the discretion to "direct" a spouse's possession of their residence, during a divorce, but no "direction" on how to do it or what factors to consider. After Section 234 was enacted, there was a conflict about judicial authority to exclude any tenant by the entirety from property during a matrimonial matter. The Second Department adopted Justice Meyer's formulation from Meyeri v. Meyeri, holding that any party seeking such "direction" from a court needed to prove such possession was necessary "to protect the safety of persons and property." Scampoli v. Scampoli, 37 A.D.2d 614 (2nd Dept.1971). By 1978, the Second Department held that sworn factual allegations of prior incidents of violence and abuse, combined with a protective order from the Family Court, justified an exclusive use order. Minnus v. Minnus, 63 A.D.2d 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...