Opinion
July 5, 1972
In an action in which a judgment of the Supreme Court, Queens County, was entered March 7, 1972, granting plaintiff husband a divorce, (1) he appeals from so much of the judgment as granted defendant alimony and exclusive occupancy of the marital home, with plaintiff to pay the fuel and utilities charges thereon, and (2) defendant cross appeals from so much of the judgment as granted the divorce and awarded custody of the parties' children to plaintiff. Judgment modified, on the law and the facts, by striking therefrom the third and fourth decretal paragraphs, which are the portions from which plaintiff appeals. As so modified, judgment affirmed insofar as appealed from, without costs. Since the judgment was granted by reason of the defendant's misconduct (cruel and inhuman treatment), no alimony should have been granted (see Math v. Math, 39 A.D.2d 583; cf. Domestic Relations Law, § 236). By parity of reasoning, she should not have been awarded exclusive occupancy of the marital residence and plaintiff should not have been directed to pay the carrying charges for fuel and utility bills. Munder, Acting P.J., Latham, Gulotta, Brennan and Benjamin, JJ., concur.