STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

ALLENE DEMARCO,


Plaintiff,


-vs- Index #H-07802


DANIEL DEMARCO,


Defendant.


 



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

Defendant



DECISION AND ORDER



GERACE, J.


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

these items.

This is the decision and order of this Court. No

further order is necessary.

Dated: August 25, 1995

Mayville, New York


 

JOSEPH GERACE

Justice of Supreme Court