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The plaintiff and the defendant were married in 1955


Page 724
550 N.Y.S.2d 724
157 A.D.2d 822
Julius DE CILLIS, Respondent,
Helen DE CILLIS, Appellant.
Supreme Court, Appellate Division,
Second Department.
Jan. 29, 1990.
Page 725
Silbowitz, Bleier & Bleier, Jamaica (Albert E. Silbowitz, of counsel), for appellant.
Richard J. Finamore, Great Neck, for respondent.

In an action for a divorce and ancillary relief, the defendant wife appeals from so much of a judgment of the Supreme Court, Queens County (Levine, J.), dated February 19, 1988, as, after a nonjury trial and a determination in the criminal defendant’s favor dismissing the complaint, granted the plaintiff husband’s application for leave to return to the marital premises owned by the parties as tenants by the entirety.

ORDERED that the judgment is reversed insofar as appealed from, on the facts and as a matter of discretion, with costs, the plaintiff’s application is denied, and the defendant is awarded exclusive occupancy of the marital residence.

The plaintiff and the defendant were married in 1955 and have two grown daughters, one of whom resides with the defendant in what once served as the parties’ home. Those premises, built to be lived in by one family, were a gift to the defendant by her father in 1955. In 1962, the defendant transferred title to herself and the plaintiff as tenants by the entirety. The plaintiff vacated the premises in June 1984 and shortly thereafter took up residence at the home of a woman whom the defendant alleged was the plaintiff’s paramour and with whom the plaintiff was still residing at the time of the trial, over three and one half years later. At some unspecified time after the plaintiff’s departure, the defendant changed the locks on the doors to the home she and the plaintiff once occupied together.

In December 1987 shortly before the trial of this action, two and one-half years after he commenced the instant action for divorce grounded on the defendant’s alleged sexual abandonment of him, and within weeks after the defendant’s attorneys apparently advised him that the defendant’s counterclaims for divorce would be withdrawn,
Page 726

the plaintiff moved for leave to use and occupy the marital home, or, alternatively, to require the defendant pay him rent. The criminal defendant opposed the [157 A.D.2d 823] motion and requested, albeit without benefit of a formal cross motion, that she be granted exclusive occupancy of the marital residence. The Supreme Court evidently reserved decision until the trial. Upon its announcement at the conclusion of the trial of its decision dismissing the complaint, the Supreme Court granted plaintiff’s motion and, over the defendant’s protest, directed the defendant to permit the plaintiff to move back into the residence and “to live there peaceably, [but] not necessarily as man and wife”. Although the defendant testified at trial that, during an argument which occurred shortly before the plaintiff vacated the residence, the plaintiff threw a table at her, the Supreme Court’s stated rationale for its determination granting the plaintiff’s motion was that it had “heard nothing in this case to indicate [that the plaintiff] is a violent or bad person, per se”. We reverse.

Absent an evidentiary inquiry, it is generally an improvident exercise of discretion to award a spouse interim exclusive occupancy of realty unless the interim award is necessary to protect persons or property (see, Hite v. Hite, 89 A.D.2d 577, 452 N.Y.S.2d 235; see also, Stugard v. Stugard, 122 Misc.2d 571, 471 N.Y.S.2d 442; cf. Delli Venneri v. Delli Venneri, 120 A.D.2d 238, 507 N.Y.S.2d 855; but see, e.g., Judell v. Judell, 128 A.D.2d 416, 512 N.Y.S.2d 699). However, denial of matrimonial relief by way of final judgment does not preclude an award of exclusive occupancy of the marital premises (see, Domestic Relations Law ยง 234, Del Gatto v. Del Gatto, 142 A.D.2d 545, 530 N.Y.S.2d 584; Maulella v. Maulella, 90 A.D.2d 535, 455 N.Y.S.2d 103; Stugard v. Stugard, supra ), and, because of the opportunity to fully explore the respective circumstances of the parties, a more flexible standard is applicable where a determination concerning possession of property as between the parties is made following a trial (cf., Delli Venneri v. Delli Venneri, supra; 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).
The absence in this case of any persuasive evidence that the plaintiff was ousted from the residence mandates denial of any surviving claim for rent from the defendant (see Daigle v. Daigle, 73 A.D.2d 771, 423 N.Y.S.2d 539). Moreover, although our dissenting colleague urges that, because there was only one incident of violence, there is no atmosphere of domestic strife warranting denial to the plaintiff of access to the premises, a factual determination that the plaintiff is not a violent person does not require that his application for authorization to resume use and occupancy of the premises be granted (cf., Delli Venneri v. Delli Venneri, supra; Brady v. Brady, supra ). Indeed, the tests which, according to the dissent, the defendant failed to meet, were meant to apply in cases involving pendente lite [157 A.D.2d 824] applications when an interim evidentiary inquiry was not to be made (cf., Hite v. Hite, supra; Stugard v. Stugard, supra; Delli Venneri v. Delli Venneri, supra ). No such limitation is applicable here and we perceive no “dangerous precedent” ensuing from a denial after trial of the plaintiff’s application for authorization to return to the premises he and the defendant once shared as husband and wife.

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