In L.M.L. v. H.T.N. (Supreme Court, Monroe Co., NYLJ, 10-20-17) Justice Richard A. Dollinger grappled with an application for interim exclusive possession of the marital residence. With the literary flair so often found in a Dollinger decision, he styled his task “an Augean Challenge,” analogizing it to the Fifth Labor of Hercules. (For the fifth labor, Eurystheus ordered Hercules to clean up King Augeas' stables wherein some 30 years of cattle dung had accumulated, a foul and sordid task indeed. No doubt many a matrimonial judge, wading daily through the muck of failed marriages, has felt similarly oppressed.) It is an apt analogy. The resulting decision substantially recasts one of the traditional standards governing the grant of such relief. The decision is both instructive and innovative. It is also troubling. This article will explore its substantive and procedural implications.

Factual Summary

In this matrimonial action, the wife moved for interim exclusive possession of the marital residence. The home was owned by the parties as tenants by the entirety and was occupied by both parties together with their two sons, ages twelve and nine.

The parties put affidavits before the court that in almost all respects offered diametric versions of household life. The wife claimed that she was the primary caregiver of the children. The husband claimed that he was the primary caregiver. The wife averred that the husband had a violent temper, that he started fights, and at one point threatened her with a knife. The husband averred that the wife was an alcoholic who threatened to kill him. Each party contested virtually every allegation put forth by the other. While the husband admitted verbal arguments had occurred, he asserted—without contradiction—that he had never been physically violent. The only point of agreement, according to the court, was that the household was “rife with arguments, verbal fights, flared tempers, threats, claims of alienation, 'sexual manipulation' (according to the husband) and allegations of damage to personal property.” (Unless otherwise noted, all quoted text is taken directly from the decision in L.M.L. v. H.T.N.)

Standard for Relief

The court began its analysis by tracking the legislative and judicial history of the law governing pendente lite exclusion of a spouse from the marital residence. Domestic Relations Law 234 authorizes the court to make “such direction between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties.” While the statute authorizes interim exclusion orders it is, as the court noted, silent with respect to “how to do it or what factors to consider.” That task devolved to the courts.

Accordingly, Justice Dollinger reviewed numerous judicial decisions marking the evolution of the law of interim possessory awards. The court noted that the standard that emerged initially held that pendente lite exclusive possession should be granted only upon a showing that such an award was necessary “to protect the safety of persons and property.” This standard typically required a showing that the party to be excluded had engaged in “violence and abuse.”

The next significant iteration of an exclusion standard was the “domestic strife/alternative residence” locution. This standard held that:

“if one spouse had an alternative residence, then the standard was somewhat less onerous to a litigant and only required proof of the 'existence of an acrimonious relationship between the parties, and the potential turmoil which might result from the husband's return to the marital home.'”

This standard was usually employed when the non-moving spouse had voluntarily established a separate residence and was threatening—typically as a stratagem—to return to the marital home. Justice Dollinger reviewed the precedents that held that this standard required a level of “strife” that rose above the “petty harassments such as the hostility and contempt—that are routinely part and parcel of an action for divorce.” He also referenced a prior decision that explained why “petty harassment” was insufficient:

“The invocation of words such as 'domestic strife' and an amorphous often times subjective standard such as 'the best interest of child' as a predicate for such applications is a concept that may ultimately lead a court into awarding exclusive occupancy in every litigated matter and will provide little guidance to counsel in advising clients. It could also be said that the parties are adversarial, uncivil and less than cordial to each other in many cases that reach the point requiring court intervention, regretfully often in the presence of their children.”

In other words, if the unpleasantness that typically attends marital dissolution were sufficient, there would be few cases where a spouse would not be ejected from the family home.

Justice Dollinger concluded that the extant case law reflected:

“an outdated notion that continual verbal abuse and sharply-worded verbal fights are simply 'petty harassments' that are 'part and parcel of actions for divorce' and ignore persuasive social science evidence that domestic turmoil can severely damage the lives of children.”

Impact on Children

Citing the behavioral science literature, the court observed that “even minimal levels of domestic discord impact children living in a besieged household.” There would seem to be little disagreement with the proposition that the stress experienced by children exposed to intense parental conflict “erodes the child's sense of home life” and can send the message to the child “that such behavior is acceptable.”

Justice Dollinger's concern for the impact of the strife on the children is in accord with prevailing views in the behavioral science field. As forensic psychologist David A. Martindale, Ph.D., notes:

“While it is important to keep in mind that there are deficiencies in our knowledge base, the concept of observational learning is widely accepted. Social learning theory would predict that when children observe their parents interact in unhealthy ways, the children are at risk for behaving in similar ways when they become adults.” (Martindale, D.A., private communication, 10-24-17)

Based upon the evolving law and the behavioral science literature, Justice Dollinger found the existing standards for an exclusion order inadequate to the task of determining the motion, particularly in their lack of attention to the best interests of the children who are adversely impacted by the family turmoil.

“In this court's view, the 'strife/available relocation' test, previously used by New York's courts, is based on an analysis of the conflict between the parents as it impacts the parents. The courts applying the 'strife' test focus on whether the parents should be able to cope with the strife and, if parents can (or should be able to), then exclusive use and possession is not required.”

Expressing the view that a more child-centric approach is required, one that considers “more discerning criteria” for granting an exclusion order, the court continued:

“Whether the parents can tolerate the strife or 'petty harassments' ignores the more significant factor: whether the children, often without mature understandings of adult interactions and looking to their parents for examples of mature behavior, can tolerate the same level of 'strife.'”

The court determined that the children in the present case “have already endured and may have learned the demeaning and destructive conduct of their parents.” Justice Dollinger expressed concern that if he were to deny the application, in effect “sending the parties back to the neutral corners,” it would convey the wrong message to the parents and the children. The court took the position that where children are exposed to and impacted by domestic unpleasantries a lesser level of strife will suffice to meet the first prong of the strife/alternative residence test.

Availability of Alternative Residence

The court next turned its attention to the second prong, the issue of whether an alternative residence was readily available to the displaced spouse. It acknowledged that neither parent could immediately leave the residence and either would be “challenged to find close-by accommodations” that could facilitate overnight visitation with the children. It further acknowledged that the parties' financial circumstances would make transition to a second residence difficult. Noting however that the marital residence was unencumbered and that the wife had access to financial resources, it noted that the wife had offered to turn over $10,000 to finance the husband's relocation, subject to later adjustment in the equitable distribution award. The court embraced this circumstance and held:

“In this court's view, the available funds to relocate in the short term is an acceptable substitute for the 'available residence' requirement that other appellate decisions have suggested must be present before granting exclusive use.”

In effect, the court applied the two-prong standard of domestic strife/available alternative residence but with two significant modifications. First, as noted, it held that a lesser standard of strife will satisfy the first prong of the test where children are being harmed. Second, it construed the available alternative residence prong to be met where the resources can be marshaled to acquire such a residence.

The court thereupon granted the wife's application, held that the wife would be the temporary primary residential parent, and ordered the husband to vacate the residence within 15 days “to reduce the stress and strain on these children and to further their best interests.” The court also indicated its intent to conduct a hearing on the issue within 45 days.

Due Process Concerns

The eviction of a spouse from his or her home, no matter how briefly, is no trivial thing. In addition to the disruption it inflicts on the ousted spouse it potentially resets the custodial status quo. Justice Dollinger acknowledged this and assured the parties that they would not be prejudiced in any subsequent custody determination:

“While awarding temporary exclusive use, the court also will not prejudice either parent in the final determination of their primary residential status. If the husband finds suitable accommodations within the same school district as the children currently attend, this court will order him to have a shared residency with his sons and equal time in his new temporary residence.”

That's a laudable expression of intent and no doubt sincerely stated. But what if the husband cannot find suitable accommodations in the 15 days the court has allotted him? And what about other cases where such an alternative residence cannot be established? In that event there will be a new custodial status quo in place to the detriment of the excluded party. To visit such consequences on a party in the face of diametrically conflicting allegations without conducting an evidentiary hearing is extremely troubling. The court conceded that it could not “pinpoint the perpetrator” of the household turmoil without a hearing and that an immediate temporary eviction “might make matters worse.” Justice Dollinger expressly recognized the due process implications of such action:

“Siding with one party based on less than a full airing of proof seems contrary to any norms of due process and heightens the possibility of judicial error. If a full hearing occurred, then the court would have a firm factual basis to consider this application and apply, without reservation, the standards articulated in this opinion and companion case law.”

Justice Dollinger's intellectual honesty in acknowledging the violence his decision does to due process is as refreshing as it is rare. Unfortunately, its candor does not diminish that violence. Decisional law is replete with long-standing authority for the proposition that conflicting factual allegations in a motion for interim exclusive use require a hearing. (Shields v. Shields, 178 A.D.2d 923 (4th Dept. 1991); Waldeck v. Waldeck, 138 A.D.2d 373 (2d Dept. 1988).

The practical import of this summary eviction should also be noted. The court acknowledged that it could not identify the perpetrator of the discord without conducting a hearing. Suppose it turns out that the wife was the aggressor? In that event, the court's exclusion of the husband will have rewarded the wrongdoer. What kind of message would that send to the children?

Conclusion

L.M.L.v. H.T.N. is an important decision. The meticulous historical account of the evolution of the exclusion standard it provides alone makes it a worthy read. Justice Dollinger's concerns with respect to the harm to children from exposure to domestic discord are valid but whether they should outweigh the fundamental right to procedural due process is quite another question entirely.

Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John's University.

In L.M.L. v. H.T.N. (Supreme Court, Monroe Co., NYLJ, 10-20-17) Justice Richard A. Dollinger grappled with an application for interim exclusive possession of the marital residence. With the literary flair so often found in a Dollinger decision, he styled his task “an Augean Challenge,” analogizing it to the Fifth Labor of Hercules. (For the fifth labor, Eurystheus ordered Hercules to clean up King Augeas' stables wherein some 30 years of cattle dung had accumulated, a foul and sordid task indeed. No doubt many a matrimonial judge, wading daily through the muck of failed marriages, has felt similarly oppressed.) It is an apt analogy. The resulting decision substantially recasts one of the traditional standards governing the grant of such relief. The decision is both instructive and innovative. It is also troubling. This article will explore its substantive and procedural implications.

Factual Summary

In this matrimonial action, the wife moved for interim exclusive possession of the marital residence. The home was owned by the parties as tenants by the entirety and was occupied by both parties together with their two sons, ages twelve and nine.

The parties put affidavits before the court that in almost all respects offered diametric versions of household life. The wife claimed that she was the primary caregiver of the children. The husband claimed that he was the primary caregiver. The wife averred that the husband had a violent temper, that he started fights, and at one point threatened her with a knife. The husband averred that the wife was an alcoholic who threatened to kill him. Each party contested virtually every allegation put forth by the other. While the husband admitted verbal arguments had occurred, he asserted—without contradiction—that he had never been physically violent. The only point of agreement, according to the court, was that the household was “rife with arguments, verbal fights, flared tempers, threats, claims of alienation, 'sexual manipulation' (according to the husband) and allegations of damage to personal property.” (Unless otherwise noted, all quoted text is taken directly from the decision in L.M.L. v. H.T.N.)

Standard for Relief

The court began its analysis by tracking the legislative and judicial history of the law governing pendente lite exclusion of a spouse from the marital residence. Domestic Relations Law 234 authorizes the court to make “such direction between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties.” While the statute authorizes interim exclusion orders it is, as the court noted, silent with respect to “how to do it or what factors to consider.” That task devolved to the courts.

Accordingly, Justice Dollinger reviewed numerous judicial decisions marking the evolution of the law of interim possessory awards. The court noted that the standard that emerged initially held that pendente lite exclusive possession should be granted only upon a showing that such an award was necessary “to protect the safety of persons and property.” This standard typically required a showing that the party to be excluded had engaged in “violence and abuse.”

The next significant iteration of an exclusion standard was the “domestic strife/alternative residence” locution. This standard held that:

“if one spouse had an alternative residence, then the standard was somewhat less onerous to a litigant and only required proof of the 'existence of an acrimonious relationship between the parties, and the potential turmoil which might result from the husband's return to the marital home.'”

This standard was usually employed when the non-moving spouse had voluntarily established a separate residence and was threatening—typically as a stratagem—to return to the marital home. Justice Dollinger reviewed the precedents that held that this standard required a level of “strife” that rose above the “petty harassments such as the hostility and contempt—that are routinely part and parcel of an action for divorce.” He also referenced a prior decision that explained why “petty harassment” was insufficient:

“The invocation of words such as 'domestic strife' and an amorphous often times subjective standard such as 'the best interest of child' as a predicate for such applications is a concept that may ultimately lead a court into awarding exclusive occupancy in every litigated matter and will provide little guidance to counsel in advising clients. It could also be said that the parties are adversarial, uncivil and less than cordial to each other in many cases that reach the point requiring court intervention, regretfully often in the presence of their children.”

In other words, if the unpleasantness that typically attends marital dissolution were sufficient, there would be few cases where a spouse would not be ejected from the family home.

Justice Dollinger concluded that the extant case law reflected:

“an outdated notion that continual verbal abuse and sharply-worded verbal fights are simply 'petty harassments' that are 'part and parcel of actions for divorce' and ignore persuasive social science evidence that domestic turmoil can severely damage the lives of children.”

Impact on Children

Citing the behavioral science literature, the court observed that “even minimal levels of domestic discord impact children living in a besieged household.” There would seem to be little disagreement with the proposition that the stress experienced by children exposed to intense parental conflict “erodes the child's sense of home life” and can send the message to the child “that such behavior is acceptable.”

Justice Dollinger's concern for the impact of the strife on the children is in accord with prevailing views in the behavioral science field. As forensic psychologist David A. Martindale, Ph.D., notes:

“While it is important to keep in mind that there are deficiencies in our knowledge base, the concept of observational learning is widely accepted. Social learning theory would predict that when children observe their parents interact in unhealthy ways, the children are at risk for behaving in similar ways when they become adults.” (Martindale, D.A., private communication, 10-24-17)

Based upon the evolving law and the behavioral science literature, Justice Dollinger found the existing standards for an exclusion order inadequate to the task of determining the motion, particularly in their lack of attention to the best interests of the children who are adversely impacted by the family turmoil.

“In this court's view, the 'strife/available relocation' test, previously used by New York's courts, is based on an analysis of the conflict between the parents as it impacts the parents. The courts applying the 'strife' test focus on whether the parents should be able to cope with the strife and, if parents can (or should be able to), then exclusive use and possession is not required.”

Expressing the view that a more child-centric approach is required, one that considers “more discerning criteria” for granting an exclusion order, the court continued:

“Whether the parents can tolerate the strife or 'petty harassments' ignores the more significant factor: whether the children, often without mature understandings of adult interactions and looking to their parents for examples of mature behavior, can tolerate the same level of 'strife.'”

The court determined that the children in the present case “have already endured and may have learned the demeaning and destructive conduct of their parents.” Justice Dollinger expressed concern that if he were to deny the application, in effect “sending the parties back to the neutral corners,” it would convey the wrong message to the parents and the children. The court took the position that where children are exposed to and impacted by domestic unpleasantries a lesser level of strife will suffice to meet the first prong of the strife/alternative residence test.

Availability of Alternative Residence

The court next turned its attention to the second prong, the issue of whether an alternative residence was readily available to the displaced spouse. It acknowledged that neither parent could immediately leave the residence and either would be “challenged to find close-by accommodations” that could facilitate overnight visitation with the children. It further acknowledged that the parties' financial circumstances would make transition to a second residence difficult. Noting however that the marital residence was unencumbered and that the wife had access to financial resources, it noted that the wife had offered to turn over $10,000 to finance the husband's relocation, subject to later adjustment in the equitable distribution award. The court embraced this circumstance and held:

“In this court's view, the available funds to relocate in the short term is an acceptable substitute for the 'available residence' requirement that other appellate decisions have suggested must be present before granting exclusive use.”

In effect, the court applied the two-prong standard of domestic strife/available alternative residence but with two significant modifications. First, as noted, it held that a lesser standard of strife will satisfy the first prong of the test where children are being harmed. Second, it construed the available alternative residence prong to be met where the resources can be marshaled to acquire such a residence.

The court thereupon granted the wife's application, held that the wife would be the temporary primary residential parent, and ordered the husband to vacate the residence within 15 days “to reduce the stress and strain on these children and to further their best interests.” The court also indicated its intent to conduct a hearing on the issue within 45 days.

Due Process Concerns

The eviction of a spouse from his or her home, no matter how briefly, is no trivial thing. In addition to the disruption it inflicts on the ousted spouse it potentially resets the custodial status quo. Justice Dollinger acknowledged this and assured the parties that they would not be prejudiced in any subsequent custody determination:

“While awarding temporary exclusive use, the court also will not prejudice either parent in the final determination of their primary residential status. If the husband finds suitable accommodations within the same school district as the children currently attend, this court will order him to have a shared residency with his sons and equal time in his new temporary residence.”

That's a laudable expression of intent and no doubt sincerely stated. But what if the husband cannot find suitable accommodations in the 15 days the court has allotted him? And what about other cases where such an alternative residence cannot be established? In that event there will be a new custodial status quo in place to the detriment of the excluded party. To visit such consequences on a party in the face of diametrically conflicting allegations without conducting an evidentiary hearing is extremely troubling. The court conceded that it could not “pinpoint the perpetrator” of the household turmoil without a hearing and that an immediate temporary eviction “might make matters worse.” Justice Dollinger expressly recognized the due process implications of such action:

“Siding with one party based on less than a full airing of proof seems contrary to any norms of due process and heightens the possibility of judicial error. If a full hearing occurred, then the court would have a firm factual basis to consider this application and apply, without reservation, the standards articulated in this opinion and companion case law.”

Justice Dollinger's intellectual honesty in acknowledging the violence his decision does to due process is as refreshing as it is rare. Unfortunately, its candor does not diminish that violence. Decisional law is replete with long-standing authority for the proposition that conflicting factual allegations in a motion for interim exclusive use require a hearing. ( Shields v. Shields , 178 A.D.2d 923 (4th Dept. 1991); Waldeck v. Waldeck , 138 A.D.2d 373 (2d Dept. 1988).

The practical import of this summary eviction should also be noted. The court acknowledged that it could not identify the perpetrator of the discord without conducting a hearing. Suppose it turns out that the wife was the aggressor? In that event, the court's exclusion of the husband will have rewarded the wrongdoer. What kind of message would that send to the children?

Conclusion

L.M.L.v. H.T.N. is an important decision. The meticulous historical account of the evolution of the exclusion standard it provides alone makes it a worthy read. Justice Dollinger's concerns with respect to the harm to children from exposure to domestic discord are valid but whether they should outweigh the fundamental right to procedural due process is quite another question entirely.

Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John's University.