Opinion
February 9, 1976
In an action for divorce on the ground of abandonment, the plaintiff husband appeals from a judgment of the Supreme Court, Richmond County, dated April 1, 1975, which (1) dismissed the complaint, (2) awarded defendant (a) alimony in the sum of $60 per week and (b) exclusive possession of the marital premises and (3) ordered plaintiff to pay defendant's counsel fees and expenses of $1,912. Judgment modified, on the law and facts, by deleting therefrom the third and fourth decretal paragraphs (which awarded defendant exclusive possession of the marital premises and counsel fees and expenses). As so modified, judgment affirmed, without costs or disbursements, and action remanded to Special Term for further proceedings in accordance herewith. The acts of one spouse which require the other to leave the marital home because she fears for her safety bar a cause of action for divorce on the ground of abandonment (cf. Mante v Mante, 34 A.D.2d 134). At the least, justification for leaving the home is properly assertable as an affirmative defense to such action (see 1 Foster-Freed, Law and the Family [rev], § 13.26). The evidence clearly supported Special Term's conclusion that plaintiff's conduct caused defendant to fear for her safety and justified her leaving. However, the record on this appeal does not support the award of exclusive possession of the marital premises to defendant; indeed, defendant did not include a request therefor in her prayer for relief. The record is barren of any facts which would form the basis for any determination on this matter. The record is also barren of facts upon which a proper determination as to counsel fees could be made. Accordingly, a new trial is required as to these issues. Martuscello, Acting P.J., Cohalan, Margett, Damiani and Rabin, JJ., concur.