Opinion
November 13, 1978
In an action for divorce, (1) the defendant husband appeals, as limited by his notice of appeal and brief, from so much of a judgment of the Supreme Court, Kings County, dated June 20, 1977, as (a) directed him to make various payments as child support, (b) awarded the wife exclusive possession of the marital residence and granted her the use of the personal property therein, (c) directed him to pay maintenance charges on the marital residence, and (d) dismissed his counterclaim for partition of the marital residence, and (2) the plaintiff wife cross-appeals from so much of the same judgment as granted the defendant a divorce on the ground of her abandonment of him for a period in excess of one year. An appeal by defendant from an order of the same court, dated April 28, 1978, has been withdrawn. Judgment modified, on the law, by deleting (1) the fourth, fifth, sixth and eighth decretal paragraphs thereof and (2) so much of the eighteenth decretal paragraph thereof as dismissed the husband's counterclaim for partition. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements, the counterclaim for partition is reinstated, and the action is remanded to Special Term for a hearing in accordance herewith. Special Term awarded the husband a divorce against the wife predicated on her abandonment of him. The judgment of Special Term was properly founded upon evidence that the wife changed the locks on all entrances to the marital residence in conscious disregard of the husband's right of access (see Schine v Schine, 31 N.Y.2d 113, 119). Since the divorce was granted on the basis of the wife's misconduct, she lost her right to exclusive occupancy of the marital residence (see Hessen v Hessen, 33 N.Y.2d 406, 410) and to carrying charges for telephone, utilities (see Votta v Votta, 40 A.D.2d 532), mortgage, taxes, insurance and necessary repairs (see Domestic Relations Law, § 236). Therefore, the portions of the judgment which grant such relief to the wife must be stricken. The fact that the wife was awarded custody of the infant child does not exempt her from this well-established rule (see Schwatzman v Schwatzman, 62 A.D.2d 988, 989; Werner v Werner, 55 A.D.2d 735). The sole exception to this rule lies where the husband has waived his rights under section 236 Dom. Rel. of the Domestic Relations Law and has authorized the trial court to make such awards (see, e.g., Winsman v Winsman, 46 A.D.2d 820). No waiver from the husband was recorded. In the light of the fact that both parties are entitled to occupancy of and access to the marital residence, the husband's counterclaim for partition should be reinstated and the case remanded for a trial of that counterclaim. Moreover, upon remand, Special Term should reconsider the adequacy of the support award. Greater expenses may be incurred in the rental of a new residence for the child and other relocating costs (cf. Schwatzman v Schwatzman, supra). Martuscello, J.P., Latham, Damiani and Titone, JJ., concur.