Dividing Photographs and Other Mementos in Divorce

While the parties are married, they tend to accumulate personal mementos such as photographs, videos, recording, pictures, drawing and other items that represent their memories of people and places.  For many people, those photographs and videos of their children are precious and irreplaceable.  For that very reason, the courts are forced to get involved in dividing such items since parties tend to have a difficult time dividing them.

In a recent case, M.R. v. E.R., 2010 N.Y. Slip. Op. 50575(U) (Sup. Ct. Nassau Co. 2010), the court demonstrated how these issues should be approached and resolved.  In M.R., the parties resolved all of the issues in their divorce by stipulation, with the sole issue left unresolved that of the right to numerous photo albums, which contain more than 7000 photos of the parties and their children which were taken during the course of their marriage.  The husband moved for an order directing that he be awarded the photo albums and the wife cross-moved for the same relief.

In a decision and order dated November 13, 2010, the court set the motion and cross motion down for a hearing after noting that the issues raised in the papers concerned equitable distribution which 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 made the following findings of fact and conclusions of law with respect to the limited issues addressed therein. The court noted that the parties rejected all settlement attempts, and at the hearing, maintained their intractable and opposite positions, to wit, to each keep all photo albums.  The court also noted that the parties did previously attempt to settle the issue, and seemingly agreed that the husband would retain all photo albums and share equally in paying the cost of reproducing the photographs contained therein. The wife testified that the agreement was based on the parties’ understanding that the quality of reproduction would be satisfactory.  The parties paid more than $2,100 to scan the photographs onto disc(s), which were admitted into evidence.  As noted, other than what is described above, there was no signed or notarized agreement regarding the distribution of the photo albums.

The court found 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 and the court found 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.

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 accepted 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 rejected 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 did not conclude that the wife desired the albums, which contain many photographs of the parties’ children, for completely vindictive reasons.

Taking into account the previous agreement of the parties, and other facts, which the court considered 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 percentages are approximate because the court held that the selection of the photos will take place in accordance with the following method, or if parties can agree any other method.  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 respect to each successive album.

In my opinion, it is impressive that the court took the time to address this issue.  In general, courts’ time is limited, and most lawyers do not want to get involved with the issues dividing such personal property. Here in Rochester, a common practice is to refer the parties to the Center for Dispute Settlement to resolve any issues involving personal property and possessions.  The problem with this approach is that the Center does mediation, and, if the parties cannot agree, they are forced to come back to the court.  I generally counsel my clients that they should make every effort to resolve those disputes since it is expensive to litigate them.

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