Opinion
2010-09-15
JL, Plaintiff, v. AL, Defendant.
Heath Berger, Esq., Woodbury, Attorney for Plaintiff. Kenneth J. Weinstein, Esq., Garden City, Attorney for Defendant.
Heath Berger, Esq., Woodbury, Attorney for Plaintiff. Kenneth J. Weinstein, Esq., Garden City, Attorney for Defendant.
Patricia Latzman, Esq., Washington, Attorney for the Children.
ROBERT A. BRUNO, J.
Pursuant to a Decision and Order of this Court dated June 16, 2010, the matter was set down for a hearing regarding (I) the exclusive use and occupancy of the marital home located at XXXXXX, N.Y. and (ii) the custody of the two (2) children. The hearing was conducted on July 27, 2010 and August19, 2010.
Background
The parties were married on November 25, 1988 and have two unemancipated children whom are now fifteen (15) years old. Husband is 53 years old and is a self-employed business owner. Wife is 51 years old and states she is a homemaker. Husband resides with the parties' children in the marital home.
It is undisputed that Wife has a long history of alcoholism with numerous visits to treatment centers as well as numerous relapses. In the summer of 2008, Wife entered into a treatment program in Palm Beach, Florida. It is uncontroverted that Wife remained in Florida until February/March of 2009. At that time, Wife moved back to New York. It is uncontroverted that Wife did not return to the martial residence, but instead resided in a house near the martial residence. Admittedly, Wife had several more relapses during that time. In August of 2009, she returned to Florida to obtain treatment again. In November of 2009, Wife admits to yet another relapse. However, she avers that she has been sober since that time.
Procedural History
On March 25, 2010, the Hon. Michele Woodard issued a Temporary Restraining Order (“TRO”) prohibiting Wife from accessing or entering the marital residence. It was further ordered that if Wife decided to return to New York, Husband was directed to pay for housing/rent equal to or less than a stay at the Garden City Hotel. On or about May 20, 2010 this Court continued the TRO and preliminarily enjoined the Wife from accessing or entering the marital residence except as provided in a Stipulation entered on May 25, 2010, “so ordered” by this Court, to provide defendant access to visiting her children.
HEARING
The plaintiff testified that the defendant's initial attempt for help with her drinking problem was May 2005 and since then has been admitted to various hospitals or detoxification programs at least seven (7) times. However, most of his testimony regarding the defendant's alcohol problem was focused upon the past two (2) years. It appears from the plaintiff's testimony, that the defendant sought treatment in recent times on at least four (4) occasions and during that time she spent most of the two (2) years in alcohol related programs and/or away from her children, while the plaintiff cared for them.
First Time
Plaintiff testified that as a result of the defendant's alcohol problem, she was admitted to Glen Cove Hospital in late January, early February 2008 for a detoxification program. In March 2008 the defendant finished the detoxification program and was welcome back to the marital residence. Thereafter, the defendant participated in an out-patient program at Kenneth Peter Center located in Syosset, N.Y. for a period of three (3) weeks, between March and April 2008.
Second Time
Plaintiff also testified that in June 2008 the defendant left the house again and was enrolled in Veritas Villa, in Kerhonkson, N.Y. as an in-patient for a twenty-eight (28) day alcohol rehabilitation program and thereafter returned to the marital residence in July 2008.
Third Time
Plaintiff testified that toward the end of July 2008 the defendant was admitted in Florida as an in-patient for ninety (90) days and thereafter as an out-patient from November 2008 through February or March 2009. Plaintiff testified he visited the defendant while she was in Florida. During this period of time the plaintiff testified he continued to care for his two (2) children, making sure they attended school, helped with the homework, and cooked for them.
When defendant returned to New York, sometime in February 2009, plaintiff testified he told her that it was not a good idea to move back into the marital residence and thereafter it appeared the defendant agreed to find a house in XXXXXX, N.Y. to live close to her children and the plaintiff paid the rent. The defendant resided at the XXXXXX house from February 2009 through July 2009. The defendant was permitted contact with the children, but overnights were not permitted.
Fourth Time
In July 2009 plaintiff testified he again took defendant to Glen Cove Hospital for alcohol detoxification rehabilitation and for another twenty-eight (28) day rehabilitation at Veritas Villa, NY. Thereafter, the defendant was enrolled in Graditute House in Florida from August 2009 until October 2009. The defendant remained in Florida until April 2010 when she decided to come back to New York where plaintiff paid for her to stay at the Fox Hollow Hotel in Woodbury, NY.
Cross Examinations of JL
On cross-examination, the plaintiff testified the defendant's alcohol problems started around May 2005. Plaintiff also testified he is an electrical contractor with approximately thirty-five (35) employees and usually worked Monday through Friday between 6:30 am to 4:00 pm. Plaintiff further testified his cousin's daughter who was twenty-one (21) years old, stayed overnight during the week and made sure the children were placed on the school bus in the morning. Also during the Summer, the children attended summer camp. In addition to the foregoing, the plaintiff had hired a contractor to renovate his home, which project took approximately three (3) years and the contractor was in the marital residence after school to make sure the children arrived home from school. Although not an ideal situation, given the age of the children (15), it seems the plaintiff did the best he could under the circumstances.
Plaintiff also testified that around August 2008 he started dating and he advised his children of same. He also testified he did not restrict the defendant from seeing the children, only that he did not want the defendant to stay at the house. The defendant was given access to the back yard and use of the pool with the children.
Even though plaintiff testified he did not want the defendant to move back in to the marital residence there were a few occasions where the plaintiff did allow the defendant to visit and stay over night on a limited basis, such as:
October 2009 over a weekend for the children's birthdays;
January 1, 2010 for four or five days regarding a play the children were performing in;
February 2010 for a period of two weeks;
March 2010 for four or five days due to some dental procedures defendant needed.
Plaintiff, during cross examination, admitted that on or about March 27, 2010 he made an application to the Court to prevent the defendant from returning to the marital residence because he felt the defendant's presence in the marital home would be unsafe and not in the best interest of the children.
At the conclusion of plaintiff's testimony, the plaintiff rested and defendant made an application to dismiss which this Court reserved decision. Thereafter, the defendant, without calling any witnesses rested and advised this Court that defendant did not want to be heard regarding the custody portion of this hearing.
The Law
Pursuant to DRL § 234, courts are statutorily empowered to award temporary exclusive possession of the marital residence to one of the parties. DRL § 234, states in relevant part:
Title to or occupancy and possession of property. In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (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. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment.
In general, the standard for awarding one spouse exclusive use and occupancy of the marital residence occurs where (1) one spouse has voluntarily established an alternative residence and the spouse's presence has caused domestic strife (Kristiansen v. Kristiansen, 144 A.D.2d 441, 534 N.Y.S.2d 104 [2nd Dept.1988] ); or (2) showing that such relief is necessary to protect the safety of persons and 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).
Legal Analysis
In the instant action, it is undisputed that the defendant has had significant difficulties with alcoholism for the past several years. According to the plaintiff's uncontroverted testimony, from early 2008 through early 2010 the defendant spent most of her time in either alcohol related programs or living in separate residences.
Counsel for defendant argues that for the purpose of determining if the defendant voluntary vacated the martial residence, this Court should not consider the time the defendant was in treatment for her alcoholism and that this Court should view defendant's treatment the same way this Court would view the treatment of any spouse who had a disease and needed medical treatment. Assuming arguendo, that the defendant's absence from the marital residence for treatment should not be considered a voluntary act, there still appears to be two (2) different lengthy time periods where there was no testimony that the defendant was in treatment for her alcoholism or that she was not voluntarily living in alternate residence.
The first such time period that the defendant resided in an alternate residence was sometime in February 2009 when she returned from her treatment in Florida. The plaintiff testified he told defendant he did not think it was a good idea for her to move back into the marital residence and it appears the defendant agreed to find a house to rent in XXXXXX, close to the children, which plaintiff paid for. Other than the plaintiff expressing his opinion that he didn't think it was a good idea for the defendant to move back into the marital residence, there was no testimony that the plaintiff changed the locks on the doors, took any legal action to prevent defendant from residing in the marital residence or physically prevented defendant from returning to the marital home. Similarly, since the defendant did not testify, the defendant offered no evidence that she tried to re-enter or live in the marital residence and was excluded or that the defendant took legal action to gain access to the marital residence. It appears to this Court, that from February 2009 through July 2009 the defendant did nothing to reestablish her residency in the marital home and was content to reside in the rented XXXXXX house until the plaintiff had to take her to Glen Cove Hospital in July 2009 as a result of an alcohol related relapse.
The second time period that the defendant resided in an alternate residence was some time in October 2009 through April 2010. The plaintiff testified that in July 2009, plaintiff again took the defendant to Glen Cove Hospital for alcohol detoxification rehabilitation which ultimately resulted in the defendant enrolling in Graditute House in Florida form August 2009 through October 2009. However, from October 2009 through April 2010, approximately seven (7) months, it appears again that the defendant had established an alternate residence in Florida. Once again the defendant did not offer any explanation as to what she was doing in Florida during those seven (7) months and the plaintiff testified she had already completed her rehabilitation in Florida. “The failure to controvert this factual assertion results in a tacit admission to its truth. See, Piltser v. Donna Lee Management Corp., 29 ADNo.d 973, 974, 816 N.Y.S.2d 543, 545 (2nd Dept.2006).” Lynch v. Village of Monroe, ––– N.Y.S.2d ––––, 2010 WL3420397 (N.Y. Sup.), 2010 N.Y. Slip Op. 20355.
Therefore, based upon the lengthy periods of time the defendant was living in an alternate residence, which was not necessary for her alcohol related problems, this Court finds such time away from the marital residence to be voluntary on the part of the defendant. As a result of the foregoing, it is not necessary for this Court to opine upon whether the time period the defendant was absent from the marital residence for alcohol related therapy is considered voluntary.
In the instant action, the plaintiff has testified that he has been dealing with the defendant's alcoholism for several years and during the past two (2) years there has been one relapse after the other all while the plaintiff is working full time in his own business and trying to raise two (2) teenage daughters. To permit the defendant to move back into the marital residence at this time is rife with the potential for strife and turmoil. In addition to the foregoing, the plaintiff's uncontroverted testimony that it would be unsafe and not in the best interest of the children to permit the defendant from moving back in to the marital residence can not be ignored. This Court will not turn a blind eye toward what is in the best interest of the children simply because defendant decided not to pursue the issue regarding custody.
Ordinarily, however, absent “a showing that such a directive is necessary to protect the safety of persons and property” courts should not award exclusive possession to one party, pendente lite, (Scampoli v. Scampoli, 37 A.D.2d 614;see Hite v. Hite, 89 A.D.2d 577;Rauch v. Rauch, 83 A.D.2d 847;Broadhurst v. Broadhurst, 50 A.D.2d 569;Heller v. Heller, 38 A.D.2d 526;see also, In re Cattell, 146 Ohio St 112, 64 N.E.2d 416; Ann.,164 ARL 321, 338). While that is undoubtedly the general rule, the standard for granting such relief should not be so inflexible as to exclude consideration of any other circumstance which would otherwise warrant judicial intervention. The presence of domestic strife is a recognized standard for an award of temporary exclusive possession. ( See, Wolfe v. Wolfe, 111 A.D.2d 809;see also, Yecies v. Yecies, 108 A.D.2d 813;Binet v. Binet, 53 A.D.2d 836.) (Delli Venneri v. Delli Venneri, 120 A.D.2d 238, 240, 507 N.Y.S.2d 855, 856 [1st Dept.1986].)
Therefore in light of defendant's unexplained seven (7) months absence from the marital residence while she was in Florida, not undergoing treatment or defendant's alternate residence in XXXXXX that the defendant agreed or acquiesced to, coupled with the strife plaintiff would have to endure with dealing with the defendant's relapse after relapse and trying to raise two (2) teenage daughters, this Court is of the opinion that the status quo shall remain unchanged and the plaintiff shall be granted exclusive use and occupancy of the marital residence, pendente lite. In addition to the foregoing, this Court's prior order dated May 25, 2010 regarding custody/visitation of the children shall remain in full force and effect pending further application from either party.
Accordingly, it is
ORDERED, that plaintiff is GRANTED exclusive use and occupancy of the marital residence, pendente lite; and it is further
ORDERED, that this Court's prior Order dated May 25, 2010 regarding custody/visitation of the children shall remain in full force and effect pending further application from either party; and it is further
ORDERED, since all discovery was to be completed pursuant to this Court's order dated May 12, 2010, the parties are directed to appear for a certification conference on October 18, 2010.
This constitutes the decision and order of this Court.