section
236 of the Domestic Relations Law, by its terms, technically applies only to actions in which matrimonial relief is sought, the section determines the public policy of the State. Accordingly, in the interest of consistency in the administration of the law, we hold that that portion of section
236 which bars an award of support to a wife guilty of misconduct such as would constitute grounds for divorce is applicable to support proceedings governed by the Family Court Act (cf.
Matter of Steinberg v Steinberg, 18 NY2d 492 ). Third, although section 412 of the Family Court Act, which authorizes proceedings such as the instant one, apparently falls within the proscription of
Orr v Orr (
440 US 268 ), we construe that statute as constitutional, since we deem it to authorize support to either spouse on a gender-neutral means basis only (cf.
Childs v Childs, 69 AD2d 406 ). Turning to the merits of the appeal, it is our view that Special Term’s conclusion that plaintiff abandoned defendant and therefore could not be granted an order of support, is unsupported by the evidence. Special Term’s finding was apparently based solely on one intemperate outburst by plaintiff, in which she stated that she could no longer live with the defendant and wanted a divorce. We find this lone instance insufficient to hold plaintiff guilty of abandoning a marriage of 30 years’ duration, particularly where it appears that plaintiff, now in her mid-fifties, was totally dependent upon defendant’s support prior to their separation, and would be hard pressed to support herself at this late date (cf.
Hessen v Hessen, 33 NY2d 406 ;
Hammer v Hammer, 34 NY2d 545 ). Section
236 of the Domestic Relations Law, which we have previously found applicable to this case, bars an award of support only where the misconduct of the wife (now read as spouse) constitutes grounds for divorce or separation. We find that plaintiff’s misconduct, if any, did not rise to such level, and further, that the circumstances of this case entitle her to have the support issue considered. Accordingly, we remit the matter to Special Term to determine that issue. We note parenthetically that our decision does not in any way imply that defendant was himself guilty of abandoning plaintiff, either actually or constructively. As to plaintiff’s cause of action for moneys allegedly expended on past necessaries, we affirm Special Term’s dismissal, upon the ground that plaintiff failed to satisfy her burden of proof. No complaint encompassing such a cause of action was ever
served and, accordingly, we cannot determine the allegations asserted in support thereof. Further, as best we can discern, no evidence with respect to the amount of plaintiff’s alleged past expenditures for necessaries was ever introduced. Accordingly, there was no basis on which such an award could be made. Lastly, we also affirm the denial of an award of counsel fees to plaintiff. We agree with Special Term’s analysis that the record shows plaintiff had sufficient funds with which to pay her attorney (cf.
Childs v Childs, supra). Titone, J. P., O’Connor, Gulotta and Margett, JJ., concur.