Weiner v. Weiner

27 Misc. 3d 1111
CourtNew York Supreme Court
DecidedApril 5, 2010
StatusPublished

This text of 27 Misc. 3d 1111 (Weiner v. Weiner) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weiner v. Weiner, 27 Misc. 3d 1111 (N.Y. Super. Ct. 2010).

Opinion

OPINION OF THE COURT

Matthew F. Cooper, J.

For close to three years, plaintiff Edie Weiner finally felt safe and secure in her country house. Nestled in the mountains of northeastern Pennsylvania and surrounded by tall woods, the house is in a private vacation community called the Hideout. The reason she felt safe, though, was not because the community is gated or has its own security force. Instead, it was because her ex-husband, defendant Jay Weiner, was barred by an order of protection from entering the Hideout and coming near her home.

Everything changed for plaintiff this past summer. That is when she learned that defendant had rented a house in the Hideout on the very same day that the order of protection expired. What scared her even more is that the house defendant rented is directly behind her house. A short walk through the woods would bring him to the edge of her back lawn where he could stand and stare into her home — under the cover of darkness or hidden by the trees — seeing what she is doing, what she is wearing, who she is with.

Plaintiff contends that her ex-husband, by moving into the Hideout as soon as the order of protection expired, is engaged in a campaign to intimidate and threaten her, and, in his own insidious way, Seeking once again to exert control over her life. Although she does not allege that he has tried to have any direct contact with her, she maintains that his mere presence within the gates of her community causes her fear and anxiety. As a result, plaintiff has moved for a new order of protection to again prevent defendant from entering the Hideout.

Plaintiff also seeks an order barring defendant from the Hideout based on the terms of a “no-molestation” clause contained in the stipulation that settled the parties’ divorce action. Because of what she believes to be his violation of the no-molestation clause, she asks to be relieved of her obligation under the stipulation to continue to pay her ex-husband spousal [1113]*1113maintenance or to keep an insurance policy in effect for his benefit. Finally, she seeks an award of attorneys fees.

Defendant opposes plaintiffs motion in all respects. He takes the position that now that the order of protection has expired, it is his constitutional right to live anywhere he wishes, even if it is right behind his ex-wife’s home. He argues that inasmuch as he abided by the order of protection while it was in effect and has had no contact with plaintiff since that time, the court has no legal basis on which to issue a new order of protection. Finally, he maintains that the no-molestation clause in the stipulation of settlement cannot be construed as a bar to his having access to the Hideout or provide a means for plaintiff to cease complying with her support obligations to him.1

The major issue before the court is whether it has the power to issue a new order of protection where the ex-husband has had no contact with his ex-wife — and has made no effort to contact or communicate with her — but has simply rented a house in close proximity to her. The court must also decide whether defendant’s act of moving into the Hideout constitutes a breach of the stipulation’s no-molestation clause, and if so, whether such breach entitles plaintiff to the additional relief she seeks.

Facts and Procedural History

This is the second time since the parties’ divorce that plaintiff has had to return to court seeking post-judgment relief against her ex-husband with regard to her vacation home. The first was in 2007 when she obtained the order of protection that barred defendant from going to the Hideout. That order of protection expired on July 30, 2009.

The judgment of divorce, which was entered on July 17, 2001, incorporated by reference the terms and provisions of a stipulation of settlement that the parties signed on October 25, 2000. The stipulation contains a number of provisions that are relevant here. The first is a clause that often appears in matrimonial agreements and is generally referred to as either a “no-molestation” or a “non-molestation clause.” The clause, as it [1114]*1114appears in article XII of the parties’ stipulation, reads in relevant part as follows:

“Neither party shall in any way molest, disturb or trouble the other, or interfere with the peace and comfort of the other, or compel or seek to compel the other to associate, cohabit or dwell with him or her by any action or proceeding for restoration of conjugal rights or by any coercive means whatsoever.”

The stipulation also provided that defendant would have all rights to the marital rent-stabilized apartment in Manhattan and plaintiff would have “exclusive and sole ownership” of the marital vacation residence in the Hideout. Despite giving up the rights to the rent-stabilized apartment and having received sole ownership of the Hideout house, plaintiff agreed to allow defendant the right to have periods of exclusive occupancy of the Hideout house until November 2013. Plaintiff, a small business owner, also agreed to pay defendant, a retired New York City teacher, $25,000 a year in maintenance, with payments to continue until the end of 2010, and to maintain a life insurance policy for his benefit.

As plaintiff would testify in this proceeding and in the earlier post-judgment proceeding that led to the issuance of the order of protection, she only agreed to pay support to defendant and allow him periods when he could stay in the Hideout house in return for obtaining the no-molestation clause. She stated that she was so anxious to end the marriage and have defendant out of her life that she was prepared to give him everything he wanted in the divorce just so long as she could be assured that he would “leave her alone” and never again interfere with her life.

As it turns out, defendant had no intention of letting his ex-wife live happily without him. Almost from the moment the divorce was granted, he began barraging her with telephone calls, letters and cards. All of these communications — bitter, mocking and nasty in tone — were to the effect that he would never let her go and that she would always be under his control. A prime example of this is a card he sent to her in which he wrote:

“I tried to stop loving you, by not calling you, not giving you the mail, and hopefully by not seeing you. All for nothing ... I haven’t lost my love for you in 3 years + 4 months of separation. However, [1115]*1115at the same time, strangely, I have grown to hate you for what you have done to my life.”

In this same vein, defendant would send letters to his ex-wife addressed “Dear Bitch.” In one letter, he referred to her and their grown son as being “perfectly suited for each other — the bitch and the son-of-a-bitch.” In another letter, he again demonstrated his twisted obsession with her when he wrote:

“Lady Get Off My Back! You have been bitter, vicious, vengeful, vindictive and menopausal to me since Nov. 16, 1998. You feel uncomfortable about my leaving notes at your building. Too bad! As I told you, I will always love you — always. For some strange reason, I still want you. However I don’t need you any longer.”

Plaintiff felt defendant’s unwanted presence most acutely when it came to the house in the Hideout.

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Bluebook (online)
27 Misc. 3d 1111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiner-v-weiner-nysupct-2010.