Judell v. Judell

128 A.D.2d 416, 512 N.Y.S.2d 699, 1987 N.Y. App. Div. LEXIS 44123

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1987
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter Schackman, J.), entered October 8, 1986, which in this matrimonial action, inter alia, awarded plaintiff temporary maintenance of $1,800 per week, and interim counsel and expert’s fees, enjoined defendant from pursuing the matrimonial action he commenced in Connecticut, enjoined both parties from disposing of marital assets, and denied the plaintiff’s application for exclusive occupancy of the marital residence, unanimously modified, on the law, to grant the plaintiff interim exclusive occupancy of the marital residence, and otherwise affirmed, without costs.

The record establishes that the defendant husband, of his own volition, has not resided in the marital home since September 1983. He admits that he now lives in Connecticut and intends to reside there in the future. Moreover, he also has several other alternative residences available, and would not suffer any disruption from an award of temporary exclusive possession to the wife. The plaintiff on the other hand, persuasively argues that his return to the marital home would engender unnecessary domestic strife.

Under these circumstances, the trial court should not have denied the wife’s request for interim exclusive occupancy of the marital home. In light of defendant’s lengthy and continued absence from the home and the potential strain and turmoil which would result from his return, we award the plaintiff interim exclusive occupancy. (Delli Venneri v Delli Venneri, 120 AD2d 238; Wolfe v Wolfe, 111 AD2d 809.)

We have examined the other points raised on this appeal and cross appeal and find them to be without merit. Concur— Sullivan, J. P., Carro, Milonas, Ellerin and Smith, JJ.