Susan W. v. Martin W.
| Decision Date | 05 January 1977 |
| Citation | 89 Misc.2d 681,392 N.Y.S.2d 957 |
| Parties | SUSAN W. v. MARTIN W. |
| Court | New York Supreme Court |
Krakower & Weissman, New York City, for plaintiff.
Rosenthal & Herman, New York City, for defendant.
Plaintiff-wife seeks a divorce or, in the alternative, a separation. She also seeks custody of the children, currently ages 16 and 13; alimony and child support; exclusive possession of the marital home and the contents therein; a declaration that plaintiff and defendant are the joint owners of certain works of art set forth in the complaint, and counsel fees. Trial of the action commenced on April 12, 1976.
Defendant, in his answer, requests sale of the marital premises and an equal division of the net proceeds thereof; disposition of all items of personal property, and return of all the works of art to the defendant as sole owner, or a money judgment for the present value of these items.
With the consent of the parties and their attorneys, I appointed an impartial Certified Public Accountant, Jerome Landau, to conduct an examination into the income and assets of the parties and to examine the books of defendant's professional corporation, through which the defendant conducts his practice as an orthopedic surgeon.
The court's purpose in suggesting the appointment of an accountant was to obtain a complete and fair disclosure of financial matters and the income and expenses needs of both parties. This was to include the submission by each of statements as to his or her current expenses and projected needs.
Mr. Landau submitted a report of his findings to the court. The report, dated February 18, 1976 (hereinafter sometimes referred to as the 'Landau report'), was used by the court in an advisory capacity. It was stipulated that it would be introduced into evidence. Neither party was to be bound by it. Either party could have called his or her own accountant as a witness to dispute any of the findings, but neither side availed himself of this opportunity.
The parties were married in December 1954 in the City of New York. There are two issue of said marriage, both under 21, to wit, 'L' born March 28, 1960 and 'V' born March 19, 1963.
Plaintiff established at the trial that defendant has been guilty of cruel and inhuman treatment towards her. Accordingly, plaintiff is granted a judgment of divorce on this ground.
There being no opposition by the defendant, custody of the two minor children is awarded to the plaintiff-wife. The defendant shall have liberal visitation rights, to be agreed upon by the parties and included in the judgment to be settled herein. In the event of their failure to so agree, they shall each submit proposals with respect to visitation as part of the proposed judgment.
I shall now consider in the following order the disputed issues to be resolved in this case:
1. Disposition of the works of art.
2. Plaintiff's request for exclusive possession of the marital home.
3. Disposition of the personal property and furnishings in the marital home.
4. The amount of alimony and child support to be awarded.
5. Counsel fees.
Plaintiff claims fifty per cent (50%) ownership in thirteen works of fine art and in a collection of miniature military figurines, and sole ownership of a Picasso sculpture of a bull's head which she contends that the defendant gave her as a gift in 1974 on the occasion of her fortieth birthday. Defendant maintains that plaintiff has no interest in any of said works of art but instead asserts that ten of the thirteen items plus the Picasso sculpture and the miniature military figures are his sole property and that the remaining three were purchased originally by and remain the property of his professional corporation.
It has been stipulated and agreed between the parties and their respective counsel that the court shall use and assign the following values for the works of art:
The professional corporation art
(so-called corporate art) $100,000.00
The Picasso bull sculpture 15,000.00
The remaining ten works of art plus
the miniature military figurine
collection 250,000.00
A. The Law
Domestic Relations Law, section 234 authorizes the court to '(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'. What circumstances are controlling in the determination of personal property in general and as regards works of art in particular?
In the early case of Whiton v. Snyder (88 N.Y. 299) the Court of Appeals said that 'It has long been the law that the possession of personal property draws with it a presumption of ownership' (supra, p. 302). The court then distinguished between articles of clothing and furniture and household goods:
Citing the Whiton case, the court in Avnet v. Avnet, 204 Misc. 760 stated at page 763, 124 N.Y.S.2d 517 at page 519:
Tausik v. Tausik, 38 Misc.2d 11, 235 N.Y.S.2d 776 goes one step further and holds that:
'No presumption in law exists, even here, as to the ownership of household property used in common by husband and wife, merely because such property may have been purchased solely with the funds of one of them (citation omitted).
Although New York does not subscribe to the principle of 'community property' (as do Arizona, California, Nevada, Texas and some other states), it is now clear, even here, that, absent affirmative proof of a different intent, household property obtained for the general use, comfort and benefit of both husband and wife, is deemed to be the property of both of them.' (supra, pp. 19--20, 235 N.Y.S.2d p. 787.)
This latter principle was rejected by the trial court in Manheim v. Manheim, 60 Misc.2d 88, 94, 302 N.Y.S.2d 473, 479, affd. 34 A.D.2d 735, 310 N.Y.S.2d 1017, wherein the court instead concluded that:
'There is no rule of law that common possession of marital personalty results in joint ownership, that neither payment of consideration nor joint use gives rise to any presumption as to ownership, but that both are facts to be taken into consideration in determining whether the party upon whom rests the burden of proof (here the plaintiff) has sustained his burden of proving his title and consequent right to possession.'
The court then referred to both payment and joint use as mere inferences which along with other considerations had to be weighed in determining the rightful ownership of the property. Under the facts before it the court held that title to the household goods, fixtures, furnishings and objects of art was in the plaintiff-husband, balancing the plaintiff's payment for the property, defendant's admission that the property was not hers, the recognition implicit in defendant's constant worry about financial security and in the whole course of marriage that the property was plaintiff's and not jointly owned against the offsetting considerations of the role the defendant-wife played in the acquisition of the property and the inference arising from the fact that it was jointly used.
The Manheim case, 60 Misc.2d 88, 302 N.Y.S.2d 473 was affirmed without opinion by the Appellate Division, Second Department, 34 A.D.2d 735, 310 N.Y.S.2d 1017, and thereafter cited in Kroul v. Kroul, 42 A.D.2d 584, 344 N.Y.S.2d 702 (2d Dept.), a divorce action involving, inter alia, the disposition of three works of art. In Kroul the court held that 'their (referring to the parties) bare common possession did not result in a joint ownership' but that 'the evidence showed that the subject works of art had been purchased by defendant and were his sole property' (supra, p. 585, 344 N.Y.S.2d p. 703). Amongst the evidence recited by the court in its opinion is the testimony of the plaintiff-wife that defendant had said to her that these works of art belong to him.
On the other side of the coin the Court of Appeals in Lindt v. Henshel, 25 N.Y.2d 357, 361, 306 N.Y.S.2d 436, 439, 254 N.E.2d 746, 748, proffered that 'Although there may be some instances where, as the courts below held, title to personal property may be presumed to vest in the person furnishing the consideration, this is not the rule where the purchase is actually made pursuant to a contract of...
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