Opinion
July 2, 1979
In a matrimonial action, the parties cross-appeal from so much of a judgment of divorce of the Supreme Court, Richmond County, dated August 1, 1978, as (1) directed the defendant to pay to the plaintiff a counsel fee in the sum of $2,500, (2) provided that the parties are to share equally the cost of educating the infant issue of the marriage and (3) directed that plaintiff bear the cost of repairs to the marital home to the extent of $100 and that defendant bear any cost exceeding $100. Judgment modified, on the law, by deleting the seventh and eighth decretal paragraphs thereof and substituting therefor provisions that the plaintiff bear the costs of any repairs to the former marital residence as well as any private schooling she deems necessary for the infant issue. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. Absent special circumstances, not shown here, the cost of private schooling is not a necessary expense for which a father may be obligated (see Kaplan v. Wallshein, 57 A.D.2d 828). Moreover, a divorce granted to the husband on the basis of the wife's "misconduct" operates to preclude her right to exclusive occupancy of the marital residence (see Schwatzman v. Schwatzman, 62 A.D.2d 988), as well as incidental repair costs, absent an explicit waiver by the husband. No such waiver occurred here as to the repair costs. Damiani, J.P., Rabin, Gulotta and Cohalan, JJ., concur.