M.R. v E.R.

[*1] M.R. v E.R. 2010 NY Slip Op 50575(U) [27 Misc 3d 1206(A)] Decided on April 9, 2010 Supreme Court, Nassau County DeStefano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2010
Supreme Court, Nassau County

M.R., Plaintiff,

against

E.R., Defendant



xx10

Vito M. DeStefano, J.

The parties in this action for divorce and ancillary relief were married on August 21, 1988. There are two children of the marriage, to wit, J— (d/o/b ) and N—— (d/o/b ). By stipulation of settlement dated July 30, 2009, the parties settled nearly all issues arising out of the marriage and the divorce litigation. Specifically, under the terms of the stipulation, the parties agreed, inter alia, that the Plaintiff Wife ("Wife") would receive the marital residence (in exchange for payment to the Defendant Husband ("Husband") of $192,500), that they would equally divide their retirement accounts (approximately $141,773.53 each, after various offsets and deductions), that the personalty in the martial residence would be divided "as they may mutually agree", except that with respect to the equitable distribution of numerous photo albums, the parties agreed that the court would resolve the issue. It was further agreed that the court would resolve the parties' applications for attorneys' fees incurred in connection with the remaining equitable distribution issue. In a separate stipulation dated February 11, 2009, the parties agreed to share joint legal custody of their children, with the Husband paying $1,400 in monthly child support to the Wife. No maintenance was required to be paid under the parties' stipulations.

As indicated, the sole issue left unresolved by the parties' stipulations was that of the right to numerous photo albums, which contain more than 7000 photos of the parties and their children [*2]and which were taken during the course of their marriage. As per the parties' stipulation, the Husband moved for an order directing that he be awarded the photo albums as well as attorneys' fees in the amount of $2,000. The Wife cross-moved for the same relief, although she asked for attorneys' fees in the amount of $3,500.

In a decision and order dated November 13, 2010, the court set the motion and cross motion down for a hearing, noting that the issues raised in the papers concerned equitable distribution and thus were not resolvable on paper submissions. At the time that the hearing was conducted on April 6, 2010, neither party was represented by counsel. After hearing, the court makes the following findings of fact and conclusions of law with respect to the limited issues addressed therein. These findings of fact and conclusions of law are, by this order, incorporated into the findings and conclusions resolving all other issues in this matrimonial action (also dated April 9, 2010). All findings shall be made part of the judgment in this action.

In rendering its decision and order herein, the court has considered all relevant facts and circumstances, including the parties' stipulations of settlement, Domestic Relations Law §236, and the evidence and testimony presented at the hearing. At the outset, the court must note that it undertook extensive efforts to settle the disputed issues, both with the parties and their attorneys, when represented. Unfortunately, the parties rejected all settlement attempts, and at the hearing, maintained their intractable and opposite positions, to wit, to each keep all photo albums. It is also relevant to note that the parties did previously attempt to settle the issue, it being agreed that the Husband would retain all photo albums and share equally in paying the cost of reproducing the photographs contained therein. The Wife further testified that the agreement was based on the parties' understanding that the quality of reproduction would be satisfactory. In fact, the parties paid more than $2,100 to scan the photographs onto disc(s), which was admitted into evidence. As noted, other than what is described above, there is no signed or notarized agreement regarding the distribution of the photo albums.

The court finds that the Husband testified credibly for the most part. Significantly, the court finds that the Husband was intricately involved with taking, compiling and cataloging the thousands of photos at issue. In this regard, the Husband testified in great detail about his meticulous cataloging of photographs, love of photography; he equated his collecting of photographs of family with the hobby of collecting rare books. The Husband described the Wife's involvement with this process as limited, and often, antagonistic. He believed that his Wife had manufactured a dispute over the photographs, not out of any real desire to obtain them for sentimental or other qualitative value, but out of some vindictive desire.

The Wife gave somewhat conflicting testimony. The court finds that the Wife had some involvement with the compilation of photos, but that such involvement was far more limited than what she testified to at the hearing. She testified to her dissatisfaction with the reproductions, and several photographs (printed from disc) containing imperfections/problems were admitted into evidence in support of her contentions. [*3]

The court has reviewed the photographs admitted into evidence both on disc and in photo albums. The disc appears to contain the contents of 75 photo albums, most of which have approximately 100 photographs. The quality of photos contained on the disc is, to the court's view, satisfactory for the most part, although it does appear that the photographs on disc are not exactly equivalent in quality to the "hard" photographs in the albums admitted into evidence. The vast majority of photos are of the children alone, or (apparently) with relatives or friends. Many photographs depict vacation places or sites visited by the parties themselves or with their children. On disc, and in the albums admitted into evidence, the Husband is pictured in numerous photos; the Wife is pictured in far less photographs. The court accepts as credible the Husband's testimony regarding the Wife's general apathy with respect to the photographic process throughout the marriage and to his greater interest in retaining the photos, and rejects the Wife's contention that the reason she does not appear in many photographs is because she was either holding the camera or did not otherwise wish to be photographed. However, the court does not conclude that the Wife desires the albums, which contain many photographs of the parties' children, for completely vindictive reasons. As noted, there is some difference in quality between the photographs on disc as compared to those in the photo albums.

Taking into account the previous agreement of the parties, and the foregoing facts, which the court considers to fall within the "catch all" factor required to be considered in making an equitable distribution award, the court hereby awards the Wife 25% of the original photos; the Husband is awarded 75% of the photos. The aforementioned percentages are approximate because it is the manner of selection, as set forth below (in the event that the parties cannot agree to a selection method), which shall govern the actual percentages of original photos distributed to each party. As such, the actual percentages received by each party respectively may vary slightly from 25% and 75 %.

The method of selection shall be in a manner agreed to by the parties or the selection process shall be as follows: starting with the first album, the Wife shall, counting from the first page thereof, be entitled to receive every fourth original photograph in that album until reaching the end of the album. Selection shall continue in like manner, with the Wife taking the fourth original photograph of each successive album, starting from the first page thereof, and continuing until reaching the end of each album. To achieve this distribution, the Husband, who is presently in possession of the albums, shall not delete, remove, transfer or change the order of any photographs in/from the albums and shall produce all albums simultaneously on the date that selection is to take place. The distribution shall not be made by either party alone. Both parties, or their representatives, are to be present when the distribution is made. This selection process shall take place on a date agreed to by the parties, but no later than June 3, 2010, at a place to be agreed upon by them, except that if a date or place cannot be agreed to, then the selection process shall take place on June 24, 2010 in Supreme Court, Nassau County, beginning at 9:30 a.m. In such event, the parties shall report to Part 21 for direction to an appropriate location in the courthouse to conduct the selection process.

The parties' requests for attorneys' fees is denied. Under the circumstances, neither party [*4]is entitled to attorneys' fees on their respective applications.

Accordingly, it is hereby ordered that the Husband's motion and the Wife's cross motion are granted only to the extent that they are consistent with the foregoing and are otherwise denied.

This constitutes the decision and order of the court, which includes the findings of facts and conclusions of law as set forth herein.

Dated: April 9, 2010

___________________________

Hon. Vito M. DeStefano, J.S.C.