Preston v. Preston

• Decision Date: 06 February 1989
• Citation: Preston v. Preston, 537 N.Y.S.2d 824, 147 A.D.2d 464 (N.Y. App. Div. 1989)
• Parties: Susan PRESTON, Appellant, v. Robert PRESTON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 824

537 N.Y.S.2d 824

147 A.D.2d 464

Susan PRESTON, Appellant, v.Robert PRESTON, Respondent.

Supreme Court, Appellate Division Second Department.

Feb. 6, 1989.

Hoffinger Friedland Dobrish Bernfeld & Hasen, New York City(Robert Z. Dobrish, Howard Slotnick and Howard A. Gardner, of counsel), for appellant.

Brandes & Stamler, Garden City(Joel R. Brandes, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals from so much of an order of the Supreme Court, Nassau County(McCaffrey, J.), dated June 20, 1988, as (1) denied, without a hearing, that branch of her motion which was for exclusive occupancy of the marital residence, (2) denied that branch of her motion which was to hold the defendant husband in contempt of court, (3) granted her only $1,750 for accounting fees, and (4) referred that branch of her motion which was for interim attorneys' fees to the trial court.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff alleged three separate incidents of violence involving the defendant and each of their three children, ages 11 to 16.These allegations were not supported by medical evidence or by corroborative third-party affidavits.She also alleged that the defendant's extra-marital affair and sporadic residence (two nights per week) in the marital home had created a disruptive and tense environment which was detrimental to her and the children.The defendant, however, denied being involved in any violent incidents with the children and explained that he had not moved out of the marital home, leaving only for temporary periods at the plaintiff's insistence that she needed "breathing space" or "some time alone."

The plaintiff now challenges the denial of her application for exclusive occupancy of the marital residence, pendente lite.We find her argument unpersuasive.

Exclusive occupancy may be awarded upon a showing that a spouse's presence has caused domestic strife and that that spouse has voluntarily established an alternative residence (see, Kristiansen v. Kristiansen, 144 A.D.2d 441, 534 N.Y.S.2d 104;Wolfe v. Wolfe, 111 A.D.2d 809, 490 N.Y.S.2d 555).The plaintiff's allegations were insufficient to require a hearing on the issue, let alone to establish her right to temporary exclusive occupancy.

A second ground to exclude one of the parties from the marital residence during the pendency of a matrimonial action is a showing that such relief is necessary to protect the safety of persons or 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).Such relief may be properly awarded without a hearing upon a sufficient showing that requires a party's allegations of violent threats or conduct be supported by evidence of prior police intervention (see, Blumenfeld v. Blumenfeld, supra ), the existence of a court order of protection (see, DeMillio v. DeMillio, 106 A.D.2d 424, 482 N.Y.S.2d 517;Minnus v. Minnus, 63 A.D.2d 966, 405 N.Y.S.2d 504), uncontroverted medical evidence ( see, King v. King, 109 A.D.2d 779, 486 N.Y.S.2d 291), or corroborative third-party affidavits (see, Harrilal v. Harrilal, 128 A.D.2d 502, 512 N.Y.S.2d 433;DeMillio v. DeMillio, supra;Blumenfeld v. Blumenfeld, supra ).Because the plaintiff's papers did not include such supporting evidence, they did not establish her right to temporary exclusive occupancy of the marital residence so as to permit the court to grant her that relief.

A hearing is generally required where, as here, the parties' affidavits are sharply contradictory (see, Harkavy v. Harkavy, supra ).In the...