STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
SUSAN V. MONACO,
-vs- Index #H-05290
JAMES D. MONACO,
ANTHONY J. SPANN, P.C.
(James J. Spann, Esq.
of Counsel) for Plaintiff
BRANDT, LAUGHLIN, WHIPPLE,
SCHAACK AND CLARK, P.C.
(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
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
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
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
JUDITH S. CLAIRE
Approved and accepted as the Decision of this Court.
Submit order accordingly.
Dated: August 30, 1995
Mayville, New York
Justice of Supreme Court