Minnus v. Minnus

63 A.D.2d 966, 405 N.Y.S.2d 504, 1978 N.Y. App. Div. LEXIS 12014

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 1978
• Status: Published

Opinion

In a matrimonial action, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated December 27, 1977, as granted the plaintiff wife’s cross motion for exclusive possession of the matrimonial residence and an order of protection directing defendant to cease and desist from physically abusing plaintiff. Order affirmed insofar as appealed from, with $50 costs and disbursements. Section 234 of the Domestic Relations Law authorizes the court to make orders concerning possession of the marital residence "as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties.” Here, where the wife has uncontested legal title to the house, has made sworn factual allegations of prior incidents of violence and abuse, and has previously obtained a protective order from the Family Court, Special Term acted well within its discretion when it awarded her exclusive possession of the house pending the outcome of the litigation (see Binet v Binet, 53 AD2d 836). The wife has no duty to support her husband if he is not in danger of becoming a public charge (Schuster v Schuster, 39 AD2d 595). We note that it is essential that applications for exclusive possession of the marital home be supported by affidavits of the spouses applying. Hopkins, J. P., Titone, Gulotta and O’Connor, JJ., concur.