It has been 18 months since Justice Richard Dollinger of the Supreme Court of the State of New York, Monroe County, issued his decision in L.M.L. v. H.T.N., 2017 NY Slip Op 51333(U). The decision addresses the standard for the remedy known as “exclusive use and occupancy” in matrimonial proceedings. The case has been the subject of discussion at continuing legal education seminars. It was also addressed in a prior column in this publication (Time to Open the Door on Exclusive Occupancy, by Dana Stutman, dated Nov. 7, 2017). However, reported decisions do not indicate that the decision has gained any traction. When one shepardizes the case on LEXIS, only one reported decision comes up—J.F. v. D.F., 2018 NY Slip Op 51829(U). J.F. is another decision by Dollinger, albeit on a different topic (parental alienation).

'Exclusive Use and Occupancy'

Unique challenges abound when parents involved in contested matrimonial litigation live under the same roof while the divorce action is pending. While the lawyers proceed with discovery, court appearances, motion practice, trial preparation, settlement negotiations, etc., divorcing parents who live together while the action is pending are put in the position of trying to carry on with everyday life in what matrimonial lawyers call the “marital residence” (i.e., home). For those families where the degree of conflict inside the home is relentless, the impact on the well-being of children who bear witness to that conflict day in and day out often leads to a discussion between attorney and client about the client's ability to obtain the interim remedy known as “exclusive use and occupancy” of the home. Section 234 of the Domestic Relations Law (DRL) empowers courts to make a “direction … concerning the possession of property … having regard to the circumstances of the case and of the respective parties.”

As noted in the L.M.L. decision, New York “reveres the best interest of children as the touchstone for judicial determinations in family matters.” When New York courts adjudicate custody, determining which custodial arrangement serves the best interests of the child includes an assessment of the quality of the home environment with each parent. Yet, Section 234 of the DRL makes no reference to “children,” or the “best interest of the child.” The statute also makes no mention of “domestic violence.”

Decisional law regarding exclusive use and occupancy is not focused on whether the day-to-day home environment of a child is inimical to the child's best interests. Instead, decisional law provides than an order directing exclusive use and occupancy of the home while a divorce action is pending is “appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife.” Taub v. Taub, 33 A.D.3d 612 (2d Dept. 2006).

The difficult question is what to do when there is (a) no immediate physical danger to the “safety of persons or property”; (b) no alternative residence; and (c) domestic strife that, according to one or both parties, is boiling over on a regular basis (what we will call the “gray area”). Under those set of circumstances, whether or not a party will prevail on an application for temporary exclusive use and occupancy can be difficult to assess, particularly because the movant has to contend with prevailing law which states that “an award of exclusive occupancy must be based upon incidents that exceed petty harassments such as the hostility and contempt … that are routinely part and parcel of an action for divorce.” Dachille v. Dachille, 43 Misc.3d 241, 250 (Sup. Ct., Monroe Cty., 2014) (citing Estis v. Estis, NYLJ, Oct. 4, 2002, 2002 NY Misc LEXIS 2028, *8 [Sup Ct, Nassau County 2002]).

In other words, will the court determine that what your client avers is an untenable situation is nothing more than ordinary bickering one would expect from a divorcing couple? If your client doesn't have a black eye, property hasn't been destroyed, and there is no alternative residence, then what?

'Petty Harassments'

In L.M.L., Justice Dollinger makes the case that the “safety of persons” (most importantly, children) can be endangered by more than physical violence. The following passages from the decision exemplify the merits of a discussion about whether or not Section 234 of the DRL gives courts sufficient flexibility when deciding applications for exclusive use and occupancy:

In this court's view, the opinion in Estes v. Estes [sic] and other cases cited above reflect 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.

Recent research indicates that even 'petty harassments'—name calling and verbal 'put downs,' isolating a partner from family and friends, withholding money and preventing a partner from being alone with their children—when aggregated during the time a divorcing couple share a residence can easily compound into what experts would clearly characterize as a form of violence.

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 L.M.L. decision notes that the New York Office for Prevention of Domestic Violence describes “coercive control” as “including restricting daily activities, manipulating or destroying family relationships, stifling a parties' independence, controlling access to information and services, extreme jealousy, excessive punishments for violations of rules, and other inter-personal conduct.” In a divorce case that involves repeated verbal attacks and humiliation inside a home with children, regarding subjects such as the other spouse's physical appearance, financial status, employment status, and/or family relationships, and the like, obtaining temporary exclusive use and occupancy of the home could prove to be a mechanism by which families do not become irretrievably broken and/or set up for inevitable post-judgment disputes.

Broadening the standard for exclusive use and occupancy raises its own concerns. At the forefront are litigants who might seek to use a broader standard as a litigation tactic to get a spouse improperly removed from the home. Conduct that is genuinely petty, e.g., the occasional swear word, raised voice, door slammed, or unflattering remark made by one parent about the other parent to a child, should not clear a path to exclusive use and occupancy. There are also economic concerns attendant to having to support two households while the divorce action is pending. The central question that flows from the L.M.L. decision is through what lens courts should determine what is “petty.”

More specifically, should “petty” be viewed from the standpoint of an adult, or a child. Coercive control is a form of domestic violence, yet in the context of Section 234 of the Domestic Relations Law, from the perspective of adults (e.g., the attorneys, litigants/parents and judges), it may fall directly into the gray area. However, from the perspective of a child who does not have a comparable degree of emotional endurance as his or her parents—particularly in the pre-teen age group—the same conduct may evoke code red. While fine tuning the law in this area is by no means a straightforward endeavor, the challenges which flow from the current state of the law merit further attention.

Alan Feigenbaum is a partner at Alter, Wolff & Foley.