In the case at bar, defendant expects the tapes to prove his counterclaim for a divorce based on adultery. It is true that upon a sufficient showing that the wife may be guilty of "misconduct [which] would itself constitute grounds for separation or divorce" (Domestic Realtions Law, § 236), temporary alimony may not be granted (Beanland v. Beanland, 54 Misc.2d 1010). Plaintiff here has not only denied the adultery but has raised the alternative defense of condonation (cf. Nobel v. Nobel, 49 A.D.2d 850).
Nevertheless, plaintiff failed to personally deny those allegations and indeed in her reply papers stated that such were "quite beside the point." It is clear that a wife who is guilty of adultery is not entitled to support (Math v Math, 39 A.D.2d 583, affd 31 N.Y.2d 693; Recht vRecht, 36 A.D.2d 939). And while temporary alimony may be granted even where the wife fails to show probability of success (Frank v Frank, 26 A.D.2d 837, 838) where there is a sufficient showing that the wife may be guilty of "misconduct [which] would itself constitute grounds for separation or divorce" (Domestic Relations Law, § 236), temporary alimony may not be granted (Beanland v Beanland, 54 Misc.2d 1010; Cipriani v Cipriani, 45 Misc.2d 500). Since on this record defendant has shown a "probability of success in establishing by a fair preponderance of the evidence that [plaintiff] has been guilty of such misconduct as would constitute grounds for a separation or divorce in his favor" (Cipriani v Cipriani, supra, p 501), it was therefore improper to grant any temporary alimony award. Moreover, under the circumstances of this case, particularly considering plaintiff's demonstrated earning ability, temporary alimony is unnecessary.
(But see L. 1968, ch. 701, amdg. Domestic Relations Law, § 211, eff. Sept. 1, 1968.) Accordingly, while in a divorce action it is permissible to serve a complaint in less than 120 days (should the conciliation proceedings be terminated within that time), it has been held that it is never permissible in a separation action to serve a complaint before the expiration of 120 days ( Palopoli v. Palopoli, N.Y.L.J., Nov. 29, 1967, p. 21, col. 3; Beanland v. Beanland, 54 Misc.2d 1010; Crocker v. Crocker, 54 Misc.2d 738; cf. Cohen v. Cohen, 55 Misc.2d 721). As stated in Crocker ( supra, p. 740), the obvious policy behind the "cooling off" period in separation and divorce actions is to avoid the solidification of the parties' positions in pleadings, which, in effect, would hamper efforts at conciliation.
With respect to the defendant's citations of legal authorities, the cases cited infra by the defendant are inapposite. In Beanland v. Beanland ( 54 Misc.2d 1010) the plaintiff was granted temporary alimony for her support and the support of the infant issue. Its rationale sustains this plaintiff's application.
My opinion in Kaplan, slightly paraphrased, applies to the instant action. I have commented at length on the intent of the Legislature in adopting this long overdue liberalization of our antediluvian divorce laws in my opinions in Beanland v. Beanland ( 54 Misc.2d 1010) and Yoli v. Yoli ( 55 Misc.2d 416); LeClaire v. LeClaire ( 58 Misc.2d 41); Frischman v. Frischman ( 58 Misc.2d 208). The Legislature of this State after 150 years passed a law liberalizing the ability of parties to obtain a divorce on grounds other than adultery without having to go through the shadow boxing of traveling to other jurisdictions to obtain divorces via spurious and superficial residence requirements.
be applied prospectively only in the absence of a clear intention of the Legislature to the contrary; that section 15 of chapter 254 of the Laws of 1966 specifically provides that this act shall take effect September 1, 1967 provided that the two-year period specified in subdivisions (5) and (6) of section 170 Dom. Rel. of the Domestic Relations Law shall not be computed to include any period prior to September 1, 1966 [no reference whatever is made in this regard to subdivision (2) of section 170]; that in the construction of statutes there is a presumption against retroactivity, and since the Legislature in enacting subdivision (2) of section 170 did not indicate any intention that it be applied retroactively, plaintiff cannot predicate a cause of action for divorce on an abandonment that occurred prior to September 1, 1967. I have commented at length as to the intent of the Legislature in adopting this long overdue liberalization of our antediluvian divorce laws in my opinions in Beanland v. Beanland ( 54 Misc.2d 1010) and Yoli v. Yoli ( 55 Misc.2d 416).
In my opinion it forbids service of any complaint with a summons in an action for divorce. Accordingly, the complaint must be dismissed ( Beanland v. Beanland, 54 Misc.2d 1010). However, I do not consider the presence of a complaint vital to plaintiff's application for restraining orders here.
In this action for separation grounded on cruel and inhuman treatment and abandonment, plaintiff wife moves for an allowance of alimony and counsel fees pendente lite. Defendant husband cross moves to dismiss the action because (a) the complaint was served in violation of section 211 Dom. Rel. of the Domestic Relations Law and (b) the summons does not have an indorsement as to the nature of the action in compliance with section 232 Dom. Rel. of the Domestic Relations Law. Before the application by plaintiff for alimony and counsel fees can be entertained, the cross motion to dismiss must here first be considered. There is no question that the service of the complaint is violative of section 211 and that it must be dismissed ( Beanland v. Beanland, 54 Misc.2d 1010). There then remains the question whether the summons, now standing alone and which admittedly does not bear an indorsement notifying the defendant of the nature of the action, must also be dismissed. Section 232 as pertinent here states: "In an action to annul a marriage or for divorce or for separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: `Action to annul a marriage', `Action to declare the nullity of a void marriage', `Action for a divorce', or `Action for a separation', as the case may be. A judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either the summons and a copy of the complaint were personally delivered to the defendant, or the copy of the summons delivered to the defendant, upon personal service of the summons, or delivered to him without the state, or published, pursuant to an order for that purpose, contai
Plaintiff asks that the remaining portion of her application including alimony for herself, counsel fees and exclusive possession of the matrimonial domicile be disposed of and granted by the court. This court has ruled that though the restrictions against service of a complaint with a summons apply to separation actions as well as divorce actions, conciliation procedures are not available in separation actions and that therefore an application for alimony and counsel fees may be made directly to the court ( Beanland v. Beanland, 54 Misc.2d 1010). In the case of a divorce action, there is no question that the procedure under section 215-e Dom. Rel. of the Domestic Relations Law is exclusive.
" Recent decisions by courts of concurrent jurisdiction, in construing this recently enacted statute, have held that a complaint may not be served in a separation action until 120 days after the service of a summons ( Crocker v. Crocker, 54 Misc.2d 738; Nashick v. Nashick, N.Y.L.J., Oct. 23, 1967, p. 18, col. 6; Beanland v. Beanland, 54 Misc.2d 1010). I am not in accord with the views expressed in the latter cited cases and disagree with the narrow construction which leads to a manifest injustice to the parties in the separation action if they are compelled to wait 120 days after service of the summons before service can be made of the complaint.