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he plaintiff and the defendant were married in 1955

 

The determination to award exclusive occupancy of realty, even where the criminal court cannot liquidate and divide the asset (see, Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809; Brady v. Brady, supra ), remains dependent upon the circumstances of each case (see, Domestic Relations Law § 234). It is nonetheless evident that the tension often occurring when spouses remain in the same household while divorce litigation is pending and with which the dissent is concerned is no less likely to arise where the parties have not resided together for a considerable length of time and one of them, although desirous of legally ending the marriage, was unsuccessful in doing so. As our dissenting colleague notes, domestic strife did not necessitate the original departure of

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the plaintiff, who unsuccessfully sought to legally dissolve the marriage and for whom return to the marital residence was obviously not prompted by financial need. After considering the plaintiff’s voluntary establishment of evidently satisfactory alternative living arrangements, the length of his absence from the residence and the potential for unnecessary strife his return could occasion (cf., Del Gatto v. Del Gatto, supra; Judell v. Judell, supra ), we substitute our discretion for that of Supreme Court and determine on the plaintiff’s motion that, as between the parties, the defendant is entitled to exclusive use and occupancy of the marital premises.

LAWRENCE, J.P., and SULLIVAN and HARWOOD, JJ., concur.

BALLETTA, J., dissents and votes to affirm the judgment insofar as appealed from, with the following memorandum:

While it is true that the court is empowered to make decisions concerning the possession of marital property “as justice requires” despite the failure of the underlying divorce action (Domestic Relations Law § 234; Brady v. Brady, 101 A.D.2d 797, 475 N.Y.S.2d 470, affd. 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290), generally, the court should not award a spouse exclusive occupancy of the marital residence absent a showing that such is necessary to protect the safety of persons or property (Harrilal v. Harrilal, 128 A.D.2d 502, 512 N.Y.S.2d 433; Rauch v. Rauch, 83 A.D.2d 847, 441 N.Y.S.2d 749). Exclusive occupancy pendente lite may also be awarded upon a showing that a spouse has caused domestic strife and that that spouse has voluntarily established an alternative residence (see, Preston v. Preston, 147 [157 A.D.2d 825] A.D.2d 464, 537 N.Y.S.2d 824). The defendant’s allegations were insufficient to establish her right to exclusive occupancy under either test.

Although it is true that the plaintiff left the marital residence on his own, it is equally true that the defendant changed the locks within a month or two after he left without ever offering him a key, and at a time when the plaintiff was still living temporarily with his son. Furthermore, on the three occasions that the plaintiff attempted to return to the marital residence he was barred from doing so by the defendant.

In addition, the defendant failed to produce any evidence at trial that the plaintiff would present a danger to her or the property if he were allowed to return to the marital home. The record is devoid of any indication of violence. In fact, there is nothing in the record which would suggest that the plaintiff has caused any domestic strife sufficient to justify denying him access to the marital residence. The only incident testified to by the defendant concerned an argument that occurred the day before the plaintiff left which started when the defendant questioned him about an alleged affair. The plaintiff purportedly became angry and threw a table, which apparently did not hit anyone. It should be noted that there was no evidence of constant arguments, or of physical or verbal abuse or the like. It is also significant that the defendant withdrew her counterclaim for a divorce based upon cruel and inhuman treatment. Thus, upon a single isolated argument which occurred during the course of a 30-year marriage, the majority would construct an atmosphere of domestic strife and bar the plaintiff from his own home for life.

The various cases cited by the majority are inapposite. In Delli Venneri v. Delli Venneri, 120 A.D.2d 238, 239, 507 N.Y.S.2d 855, in addition to other threats of various forms of physical violence, the husband threatened the wife with a death that “would make the McDonald’s massacre look like a tea party”, and there was evidence that he had purposely damaged the property. It should also be recognized that exclusive occupancy was granted pendente lite or on a temporary basis, unlike the instant case where the defendant seeks exclusive occupancy permanently.

In Del Gatto v. Del Gatto, 142 A.D.2d 545, 530 N.Y.S.2d 584, this court affirmed the trial court’s dismissal of a divorce action and granted the wife exclusive occupancy of the marital home “until a further court order”. The record in that case, however,

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showed a long [157 A.D.2d 826] history of marital discord between the parties which sometimes rose to the level of violence. Furthermore, the wife was granted custody of two minor sons.

The combination of a number of factors present in this case supports an affirmance of the court’s determination: the lack of a need for exclusive possession to protect the safety of persons or property, the lack of a showing of potential marital strife upon the husband’s return, the lack of any minor children in the household or any other reason warranting the wife’s exclusive possession, the fact that the order is not temporary but is of indefinite duration, and the wife’s withdrawal of her own viable divorce action. Moreover, although the wife argued against the husband’s motion to return to the house, apparently it was not of major concern to her since she failed to cross-move for exclusive occupancy.

The decision of the majority creates a dangerous precedent whereby a spouse could obtain exclusive occupancy on a permanent basis merely because the other spouse has moved out of the house. The court’s holding thus presents a trap for the unwary since a spouse who vacates the marital residence for any reason can suddenly find himself or herself in a state of permanent exile. The unintended result of such a ruling will be that couples will remain under the same roof pending trial despite the tension and friction that often accompanies divorce actions, since the spouse who leaves will not be allowed to cross the threshold again.