STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
-vs- Index #H-07802
FESSENDEN, LAUMER & DEANGELO
(Mary K. Barr, Esq. of
Counsel) for Plaintiff
BRANDT, LAUGHLIN, WHIPPLE,
SCHAACK & CLARK, P.C.
(Richard F. Whipple, Jr.,
Esq. of Counsel) for
DECISION AND ORDER
This matter was before the Court on a motion by
plaintiff to compel defendant to provide her with her
personal property. The Court ordered the property delivered
and reserved on costs and legal fees.
This is an unfortunate situation where the hostility
between the former husband and wife escalated interfering with
the conclusion of the final details of the divorce.
The wife now lives in Arizona and came to the former
marital home to retrieve personal property while she was in
town. She was accompanied by her mother and boyfriend. It
appears that some words were exchanged between the boyfriend
and the defendant. Ultimately, plaintiff left and did not
take any property with her claiming the husband was abusive
and violent although she gave no direct examples.
The defendant denies the allegations although he agrees
that the two men exchanged some words. He claims he has
given plaintiff opportunities in the past to retrieve her
things which she has ignored.
It is the decision of this Court that the parties share
equally in any costs incurred in collecting the property.
The plaintiff must furnish proof of any cost claimed. Both
these people have had to endure stress and frustration, and
the Court has sympathy for them. Nevertheless, they both
appear to have partly caused the problem.
Plaintiff's boyfriend is the former employee of
defendant, and plaintiff and her boyfriend left the marriage
and the area together which has to have been a source of
upset for defendant. Plaintiff might have exercised better
judgment and brought someone else with her to the marital
home. Considering the past record in this case, it might
have been anticipated that a problem could arise.
Defendant knew what items plaintiff wanted. He could
have shortened the visit by possibly locating her items ahead
of time and having them readily available.
Plaintiff asks for $750. attorney fees for having to
bring the motion. The Court is inclined to deny this
request. The arrangement agreed to by the parties was for
plaintiff to come Friday night to look at her things and to
pick them up Saturday. When the incident occurred on Friday,
plaintiff never did come on Saturday. If she felt
threatened, she might have brought a police officer with her.
She might have called her attorney and had an arrangement
where defendant temporarily left the home or agreed to put
her items on the lawn. Even if she felt defendant would not
cooperate, she foreclosed her options by not making any
attempt to collect her things.
Finally, there are the items plaintiff claims were her
separate property which defendant was refusing to transfer to
her. Plaintiff is entitled to a hearing if she so chooses on
This is the decision and order of this Court. No
further order is necessary.
Dated: August 25, 1995
Mayville, New York
Justice of Supreme Court