Seldin v. Seldin

• Decision Date: 20 November 1967
• Citation: 55 Misc.2d 187,284 N.Y.S.2d 679
• Parties: Rose L. SELDIN, Plaintiff, v. Herman M. SELDIN, Defendant.
• Court: New York Supreme Court

Page 679

284 N.Y.S.2d 679

55 Misc.2d 187

Rose L. SELDIN, Plaintiff, v. Herman M. SELDIN, Defendant.

Supreme Court, Special Term, Nassau County, Part V.

Nov. 20, 1967.

Howard Hilton Spellman, New York City, for plaintiff.

Brennan, London & Buttenwieser, New York City, for defendant; Ephraim London, New York City, of counsel.

MEMORANDUM

BERNARD S. MEYER, Justice:

In this separation action defendant amended his answer at the trial to admit abandonment and since the proof shows that he obtained a unilateral Mexican divorce, married another woman and is presently living with her, there is no question concerning plaintiff's right to a separation. A number of questions arise, however, with respect to the nature of the decree to be made.

The complaint prays judgment separating plaintiff from defendant 'for a period of one year and nine months'. While the court has authority under § 200 of the Domestic Relations Law to decree a separation 'forever, or for a limited time', the policy of our law now is that after the 'husband and wife have lived apart pursuant to a decree of separation for a period of two years after the granting of such decree' either may obtain a divorce, Domestic Relations Law § 170(5). The predicate of that policy is that there is no purpose to be served, either for the parties or the state, in continuing in theory a marriage which is meaningless in fact, 1966 Report of the Joint Legislative Committee on Matrimonial and Family Laws (Leg.Doc. (1966) No. 8) p. 90. Indeed, the difficulties involved in limited separations are memorialized in Barrere v. Barrere, 4 Johns Ch. 187; Pollitzer v. Pollitzer, 178 App.Div. 744, 165 N.Y.S. 953; Murdock v. Murdock, 148 App.Div. 564, 132 N.Y.S. 964, and the power has been exercised in but few reported cases, see Goldsmith v. Goldsmith, 151 Misc. 198, 270 N.Y.S. 47; O'Neill v. O'Neill, 163 N.Y.S. 250, n.o.r. Nothing in the evidence presented by plaintiff suggests a factual basis for making a limited decree, such as obtained in the Goldsmith and O'Neill cases, and the fact that defendant is and for some time has been living with another woman makes it highly unlikely that there will ever be a reconciliation. Moreover, if there is in fact a reconciliation within the next two years, the parties can, of course, apply to have the separation judgment vacated.

Apparent from the foregoing analysis is the fact that plaintiff's only purpose in asking for a limited decree is to frustrate possible later divorce. She could, had she seen fit to do so, have moved in Family Court for support without asking for a separation, but the law is clear that the Supreme Court can grant support and other ancillary relief only as an incident of some other form of matrimonial action, Johnson v. Johnson, 206 N.Y. 561, 100 N.E. 408. The court is not bound by plaintiff's demand for relief, CPLR 3017(a), and since to accede to it will serve no purpose and will frustrate legislative policy, the judgment will separate the parties forever.

The complaint asks an order of exclusive possession of the marital residence, which the proof showed to be owned by defendant individually. Though a question exists concerning whether the court would not abuse the discretion granted it by Domestic Relations Law § 234 by decreeing exclusive possession to one spouse of property owned solely by the other when the need of the prevailing spouse for shelter can be adequately met by a monetary award, Lerner v. Lerner, 21 A.D.2d 861, 251 N.Y.S.2d 400; see Rosenstiel v. Rosenstiel, 20 A.D.2d 71, 78, 245 N.Y.S.2d 395, 402 (concurring opinion), defendant has left plaintiff in possession of their former residence for several years and at the trial interposed no objection to an order of possession. The judgment will, therefore, include such provision.

There are three children of the marriage, but Sandy and William are now over twenty-one. Plaintiff asks that she be awarded custody of Anthony, who is 14 years of age, but that the judgment condition visitation on defendant not taking the child to the home occupied 'by him and his mistress or to exercise his periods of visitation with the said child in the company of defendant's mistress.' No evidence was introduced to indicate that the defendant and the lady with whom he presently resides with benefit of a marriage ceremony (albeit an apparently invalid one) are dissolute in their habits, or that either is in any way unfit to care for Anthony or to have him in their company. Defendant's evidence, which the court accepts, is that in the...