Opinion
July 10, 1967
In an action to annul a marriage: 1. Plaintiff appeals from so much of an order of the Supreme Court, Westchester County, dated February 23, 1967, as provided, in connection with the female defendant's appeal from an interlocutory judgment of that court, that (a) said defendant be granted counsel fees of $2,500, payable by plaintiff; and (b) plaintiff pay said defendant's actual printing disbursements incurred for the record on appeal and for appellant's brief on such appeal; and 2. Said defendant cross-appeals from so much of said order as denied her disbursements for obtaining a transcript of the trial minutes. Order modified by reducing the counsel fee awarded to the female defendant to $1,000; and denying defendant's motion for printing costs. As so modified, order, insofar as appealed from, is affirmed, with costs to plaintiff. The time for payment of such counsel fee is extended until 20 days after entry of the order hereon. Counsel fees are now governed by section 237 Dom. Rel. of the Domestic Relations Law. Under that section, probability of success is not an absolute prerequisite to obtaining relief, nor is it mandatory that financial need be proved. The statute provides, in pertinent part: "In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage * * * the court may direct the husband, or where an action for annulment is maintained after the death of the husband may direct the person or persons maintaining the action, to pay such sum or sums of money to enable the wife to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." However, in exercising its discretion, the court should consider the relative merits of the parties and their respective financial situations (see Wood v. Wood, 21 A.D.2d 627 [1st Dept.]; Walsh v. Walsh, 22 A.D.2d 937 [2d Dept.]; Weinberg v. Weinberg, 23 A.D.2d 569 [2d Dept.]; Brownstein v. Brownstein, 25 A.D.2d 205 [1st Dept.]; Frank v. Frank, 26 A.D.2d 837 [2d Dept.]. The affidavits submitted by defendant do not establish a reasonable probability of her ultimate success on her appeal from the adverse judgment below. Nor do they set forth any facts which would tend to show that she is without ample financial resources. Conclusory self-serving allegations are insufficient. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.