-vs- Index #H-05290





(James J. Spann, Esq.

of Counsel) for Plaintiff



(Richard F. Whipple, Jr.,

Esq. of Counsel) for



This matter came before the Court on an order to show

cause for temporary exclusive possession of the marital home

and other relief. A hearing was held on August 10, 14, and

22, 1995.

This is an unfortunate situation. It does appear that

exclusive possession is essential since these parties are

incapable of residing together. Each claims the other is

violent and has assaulted them and that they are the

"innocent party." While it is impossible to determine the

total truth of this situation, it is crystal clear that at

the very least this husband and wife argue constantly and can

not live together in a peaceful manner.

The parties were married 4/13/85. It was the second

marriage for both. The wife testified that she was 5'1" and

weighed 110 lbs., that the husband was over 6' and she was

afraid of him. She claims the husband has threatened to kill

her, has thrown things resulting in property damage, and has

grabbed her on occasion.

The husband testified that the wife has physically and

mentally abused him. He claimed she has thrown hot coffee on

him, punched, kicked, and scratched him, pointed a gun at

him, screamed at him, banged pots and pans so he could not

sleep etc. He introduced into evidence several photographs

showing bruises he claims she gave him.

Each denies the other's testimony.

The wife filed charges against the husband twice, and on

at least one those occasions, she was issued an order of

protection. However, the local justice of the peace was a

co-worker of the wife and subsequently recused himself after

the husband appealed. This matter is pending.

The wife's only other witness was her sister-in-law.

She testified that she heard the husband threaten the wife on

6.25.94 during an argument. "I ought to take you out back

and blow your God damn brains out." She also heard threats

on the phone. "Hang up or I'll kick your ass."

The husband called Officer Randall Boland, Chautauqua

County Sheriff as a witness. Officer Boland was called to

the Monaco home on 6/25/95. The wife claimed husband told

their dog to bite her. The officer saw nothing on her arm

where she said she was bit. Husband and his daughter spoke

to the officer, and he saw that husband had scratches on his

neck and a dark bruise on his thigh.

Husband's daughter, Brenda, age 20, testified that she

saw wife hit and kick husband many times. She said husband

never hit wife. She also testified that wife pulled her hair

and hit her. On one occasion, she claimed wife pulled a

loaded gun on husband with five children in the house and on

another occasion cut his chin with a knife.

The daughter left the marital residence because she

"couldn't stand it any longer."

Husband's son, Jamie, age 17, also left home in March

1994, because he "couldn't stand their arguing all the time."

He also saw the wife hit husband.

The husband introduced into evidence two tapes he made.

He claims he told the wife he was recording her. She denies

this. The tapes do not record any incidents of violence but

do show swearing and screaming by the wife. The husband says

she threaten to kill him with a shovel in one tape. This

referee listened twice to the tapes but was unable to

understand the majority of what was being said. It was

obvious that the wife was screaming and swearing for extended

periods, but it was impossible to determine what had caused

her to become so distraught.


The husband owns guns and has always done so.

The wife claims husband whipped Brenda with a belt.

When asked if this were so, husband said, "I have disciplined

my kids."

The parties agree that the home is titled in husband's

name since it was his from before the marriage. In exclusive

possession cases, a plaintiff must meet a higher standard

when separate property is involved.

Husband has been out of the house for some months. He

claims he has slept at relatives, in his car, and in a vacant

apartment with no furniture on the floor owned by his

brother. He is in good health and earns about $24,000


The wife would have to find alternate housing were she

to move and has no funds. She has been receiving temporary

disability due to an injury and otherwise is employed part-

time as a schoolbus driver.

The home needs several repairs and improvements in order

for it to be sold. Both parties claimed they could make the

repairs were they to have exclusive possession.

After hearing testimony, reviewing exhibits and

pleadings, and hearing oral argument, it is this referee's

belief that both these people have abused the other. Both

husband and wife appear to be likeable people. It is

possible that they bring out the worst in each other.

However likeable and civilized otherwise, it seems they are

no longer able to be either with the other.

The wife was unable to prove any physical bruises. The

only bruise she did claim was the dog bite, but the officer

testified he could see nothing and that the dog seemed

harmless. She had one witness to one incident over a year

ago. She did not testify to all the incidents mentioned in

her pleadings.

The wife denies pointing a gun other then in self-

defense but did not testify to anything where a gun would be

needed. The wife claimed to be frightened of the husband,

but evidence indicates otherwise.

The husband keeps guns which he was advised to get rid

of by the police, but he did not do so. He appears he has

hit his daughter with a belt. He came to the home after the

wife was issued an order of protection.

It is obvious that these parties can not live together.

While it is always hard to have a person leave their home,

here it appears there is no choice if husband and wife are to

retain their sanity and health.

It is the referee's recommendation that the husband be

given temporary exclusive possession of the home. The wife

is to be given until October 1, 1995 to vacate the residence.

The husband is to pay the wife the sum of $900.00 for moving

expenses since she has no funds to allow her to make a move.

Because the home is the husband's separate property, the wife

has to meet a higher standard of proof. She has not done so.

If there are any special circumstances, it is the husband and

not the wife who has shown them. If the husband returns

home, his children can stay there if they so desire.

The husband must complete all repairs and improvements

to the home within 45 days so that it can be sold in a prompt

manner. If he does not do so, a hearing can be requested and

the cost of the delay taken off the husband's share of the


Any remaining temporary issues are to be set down for

hearing in this court on FRIDAY, OCTOBER 6, 1995 at 9:30 A.M.

Dated: August 30, 1995

Mayville, New York

Respectfully submitted,



Matrimonial Referee

Approved and accepted as the Decision of this Court.

Submit order accordingly.

Dated: August 30, 1995

Mayville, New York



Justice of Supreme Court