Epstein v. Epstein

29 A.D.2d 545, 286 N.Y.S.2d 781, 1967 N.Y. App. Div. LEXIS 2797

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1967
• Status: Published

Opinion

Order o£ the Supreme Court, Kings County, dated June 22, 1967, affirmed, with $10 costs and disbursements'. Ho opinion. Brennan, Hopkins and Benjamin, JJ., concur; Christ, Acting P. J., and Rabin, J. dissent in part and vote to modify the order so as to deny so much of plaintiff’s motion as was for a direction that she be given exclusive occupancy of the marital home for her and the child’s use and to affirm the order as so modified. On the facts presented by the moving affidavits, it was an improvident exercise of discretion to award exclusive possession of the marital home to plaintiff wife prior to trial of this separation action. The court has the power to so direct under proper circumstances, but the record here does not establish that defendant husband’s actions toward his wife have been such as to merit excluding him from his own home. Traditionally, a positive showing of necessity to protect the health and safety of the wife and children has been required before a court would grant such relief (Mayeri v. Mayeri, 26 Misc 2d 6, 9; Budowsky v. Budowsky, 24 Misc 2d 137, 138; see Coleman v. Coleman, 36 Misc 2d 540, 541). All we are presented with here is a marriage beset by arguments concerning financial matters and in which the parties have ceased to live together as man and wife. Defendant has neither committed nor threatened any violent acts upon his wife’s person; and, although it may be distasteful for her to remain with him in their small three-room apartment, the mere fact that she is unhappy with his presence and wants him out is insufficient to support this order of exclusion. Physical separation is not a precondition to judicial separation (Lowenfish v. Lowenfish, 278 App. Div. 716).