54 Misc. 2d 738 | N.Y. Sup. Ct. | 1967
In an action for a judicial separation
the plaintiff wife moves for temporary alimony and counsel fees. The action was commenced after September 1, 1967 and thus is governed by the amendments to the Domestic Eelations Law enacted in chapter 254 of the Laws of 1966. Accordingly, the plaintiff’s motion of necessity raises some fundamental questions involving the interpretation and effect of the new statute which should be resolved at the outset for the guidance of the Bar. Briefly, these questions are (1) whether in a separation action a motion for temporary alimony or counsel fees may be made before the expiration of 120 days from the service of the summons; (2) if so, what are the proper contents of the moving papers for such a motion, and (3) the effect of noncompliance with section 211 of the Domestic Eelations Law.
Parties to a divorce action when involved in a conciliation proceeding are permitted and would seem required by section 215-e of the Domestic Eelations Law to make applications for temporary alimony and counsel fees to the Conciliation Commission. Since parties to a separation action do not get involved in conciliation proceedings, this section is inapplicable to them. Sections 236 and 237 of the Domestic Eelations Law, however, have not been changed by the new statute. Nor is there any provision in the new statute which appears to strip the court of its power to grant temporary alimony and counsel fees in separation actions. This court, therefore, is of the opinion that a motion for temporary alimony and counsel fees may still be made and entertained simultaneously with or immediately after the commencement of a separation action. This is consistent with the relief afforded parties to a divorce action under the aforesaid section 215-e and with the prior public policy of the State as expressed in sections 236 and 237, which is to enforce the general obligations of a husband to support his wife and children. (Cf. Brownstein v. Brownstein, 25 A D 2d 205.) This obligation does not cease to exist merely because of the statutory “ cooling off ” period.
The next question is whether there should be a change in what is required in the way of supporting papers upon a motion for temporary alimony and counsel fees in a separation action. Section 236 permits the court to 11 direct the husband to provide
It is clear that a plaintiff in a separation action is now precluded from serving a complaint for 120 days after the service of the summons (Domestic Relations Law, § 211). This section would be rendered utterly useless if a wife were required or permitted to use an affidavit attempting to demonstrate probability of success during the said 120 days. It would be unreasonable to hold that the Legislature intended to permit a party to point up by affidavits and specifics that which it did not want the complaint to do by conclusions and generalities. An examination of section 215-e bears this out, for there, with respect to an application to the Conciliation Commissioner for temporary alimony and counsel fees in a divorce action, it is specifically provided that “ The relief sought shall be based on an affidavit of the party seeking the relief which shall relate only to the
The last question pertains to the effect of a failure to comply with section 211. The court has no doubt that a complaint served during the prohibited time is a nullity and should be stricken. The question is whether the service of such a complaint so thwarts the purpose of the statute as to require the dismissal of the action. The court is inclined to believe that it should. Such drastic relief shall not now be ordered, however, since the statute is new and the Bar has not yet had an opportunity to become familiar with it. (Cf. Frey v. MVAIC, 11 A D 2d 693, affd. 9 N Y 2d 849; Rusnak v. Doby, 267 App. Div. 122; Knudson v. Flynn-Hill Elevator Corp., 49 Misc 2d 78, 81.) The Bar is apprised, nevertheless, that such indulgence shall not continue indefinitely.
In the instant case, simultaneously with the service of the summons, the plaintiff served a complaint and an extensive affidavit treating at length matters pertaining to the merits of the actiou as well as financial ability and need. The court has not considered the material contained in either the complaint or the affidavit except as the latter relates to financial circumstances of the parties. After consideration, of those parts of the plaintiff’s affidavit which have been properly interposed, the court grants the plaintiff’s motion to the extent that plaintiff is awarded $35 per week temporary alimony commencing September 28, 1967 and a counsel fee of $500, one half of which is to be paid within 30 days of the service of a copy of the order to be entered hereon and one half when the action first appears on the Beady Day Calendar for trial. Plaintiff is given leave to apply to the trial court for additional counsel fee. The defendant is directed to place the action on the calendar within 30. days after the joinder' of issue. On the court’s own motion, the complaint is stricken.