Opinion
March 9, 1970
MEMORANDUM BY THE COURT. Appeal by the plaintiff from an order of the Supreme Court at Special Term, entered in Schenectady County on November 6, 1969, which granted temporary alimony and counsel fees to respondent pendente lite. The appellant contends that temporary alimony and counsel fees may not be granted to a defendant wife unless she demonstrates a reasonable probability of success in her defense and utilizes itemized accounts of expenses to show need. The granting of temporary alimony is no longer dependent upon showing a reasonable probability of success and alimony may be granted regardless of the wife's actual success upon the trial unless her actual wrongdoing is found by the trial court. (See Domestic Relations Law, § 236; Frank v. Frank, 26 A.D.2d 837.) The requirement that a defendant wife establish the existence of a defense before being granted temporary alimony is archaic in view of today's practice which does not permit the service of a complaint with the summons and therefore initially gives no opportunity to state a defense. (See Domestic Relations Law, § 211; B. v. B., 30 A.D.2d 347.) While a court need not require a showing of good defense by a defendant wife, it should be noted that in a proper case, the failure to show any defense might weigh upon the exercise of discretion in granting temporary alimony. The affidavit of the defendant wife does not as fully detail her assets and expenses as might be desired, but it is sufficient to show a need of support pending the outcome of the litigation. Order affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by the court.