Opinion
November 5, 1976
Appeal from the Ontario Supreme Court.
Present — Marsh, P.J., Moule, Simons, Goldman and Witmer, JJ.
Judgment unanimously affirmed, with costs. Memorandum: Defendant appeals from a judgment granting divorce to plaintiff on the ground of cruel and inhuman treatment and fixing permanent alimony, and denying divorce to him on the ground of abandonment because of plaintiff's refusal to have sexual relations with him. He also appeals from intermediate orders for temporary alimony; and he contends that the court erred in denying his request, made at the opening of the trial, for an adjournment to amend his answer to allege an act of adultery by the plaintiff in 1972, at least three years earlier. We find no abuse of discretion in the trial court's denial of an adjournment to amend the pleadings at that late date (see James-Smith v Rottenberg, 32 A.D.2d 792). Since the refusal of plaintiff to have sexual relations with defendant was based upon his misconduct toward her, it will not support his counterclaim for divorce against her (see Mirizio v Mirizio, 242 N.Y. 74, 80), and in any event, since that refusal existed for much less than one year prior to the institution of this action, it will not support defendant's counterclaim for divorce on the ground of abandonment (Domestic Relations Law, § 170, subd [2]; see Dudzick v Dudzick, 84 Misc.2d 731, 735; Cavallo v Cavallo, 79 Misc.2d 195, 197). The evidence of defendant's cruel and inhuman treatment of plaintiff was sufficient to support the judgment for her; and the evidence of his assets and earning ability was sufficient to justify the orders for temporary alimony and the judgment for permanent alimony (see Kay v Kay, 37 N.Y.2d 632, 637). The stipulation of counsel at argument renders moot the appeal from the order of October 27, 1975 appointing a receiver, and that appeal is dismissed.