Opinion
September 28, 1981
In a matrimonial action, the defendant wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Richmond County (Goldberg, J.), dated June 13, 1980, as, after a nonjury trial, awarded plaintiff custody of the infant issue of the marriage and exclusive occupancy and possession of the marital premises. Judgment modified, on the law, by deleting the decretal paragraph granting plaintiff exclusive occupancy and possession of the marital premises and substituting a provision denying him exclusive occupancy and possession. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. The judgment appealed from granted defendant a divorce on the ground of constructive abandonment by the plaintiff. Exclusive occupancy of the marital premises may not be awarded to a spouse against whom a divorce has been granted on fault grounds (see Stauble v. Stauble, 72 A.D.2d 581; Votta v Votta, 40 A.D.2d 532). This rule has been applied in cases of dual divorce, judgments such as the one at bar (see Schwatzman v Schwatzman, 62 A.D.2d 988; Kaplan v. Kaplan, 66 A.D.2d 834; McNair v. McNair, 75 A.D.2d 1016). Special Term properly awarded custody of the infant issue of the marriage to plaintiff after a full hearing and consideration of all relevant factors (see Di Bello v. Di Bello, 78 A.D.2d 547). The court committed no abuse of discretion warranting setting aside of the custody award (see Matter of Richards v. Richards, 78 A.D.2d 943). Mollen, P.J., Damiani, Gibbons and Thompson, JJ., concur.