Opinion
November 10, 1977 (Republish)
Judgment of the Supreme Court, New York County, entered July 14, 1976, dismissing complaint of plaintiff wife which requested dissolution of the marriage on the grounds of cruel and inhuman treatment and abandonment, and granting defendant husband a separation on the ground of abandonment by plaintiff, unanimously modified, on the law and on the facts, without costs and disbursements, to the extent of reversing the granting of a separation to defendant, and granting a divorce to plaintiff, and remanding for a plenary hearing on the issue of alimony due plaintiff, and otherwise affirmed. The evidence conclusively established that plaintiff was struck by defendant on three separate occasions. "[M]ore than a single act of violence resulting from momentary anger, `transient discord' or mere incompatibility" is involved. (Echevarria v Echevarria, 40 N.Y.2d 262, 263; Hesson v Hesson, 33 N.Y.2d 406, 411.) The evidence as to "abandonment" by plaintiff was clearly insufficient. Defendant failed to meet the burden of proof that was his to establish that plaintiff voluntarily and wrongfully departed from the marital apartment, without his consent and with an intent not to return (Solomon v Solomon, 290 N.Y. 337). Nor did defendant meet the burden of proving a constructive abandonment (Schine v Schine, 31 N.Y.2d 113). The trial court correctly found that certain personal property belonged to plaintiff. We are aware that on this appeal plaintiff did not seek support. However, in granting plaintiff a divorce on the ground of cruel and inhuman treatment, we note that in her complaint for a divorce she requested an award of permanent alimony. Therefore, we would remand and order a plenary hearing on this issue.
Concur — Lupiano, J.P., Birns, Lane and Markewich, JJ. [ 59 A.D.2d 841. ]