Opinion
May 3, 1971
In an action for divorce, defendant-husband appeals from two orders of the Supreme Court, Nassau County, both entered January 18, 1971, (1) one granting plaintiff's motion for support for herself and the parties' children pendente lite, temporary custody of the children, exclusive possession of the marital residence, and a counsel fee, and (2) the other granting plaintiff's motion for reargument of her prior motion for exclusive possession of the marital residence and, upon reargument, granting her exclusive possession. First above-mentioned order modified, by striking therefrom the decretal provisions awarding plaintiff support for herself and a counsel fee. As so modified, said order affirmed, without costs. Second above-mentioned order affirmed, without costs. The affidavits submitted at Special Term indicate that plaintiff has sufficient assets to maintain herself pending trial of this action. Temporary alimony should not be encouraged unless there is a genuine necessity therefor ( Swinson v. Swinson, 29 A.D.2d 693; Light v. Light, 29 A.D.2d 540; Katzman v. Katzman, 28 A.D.2d 1134). Additionally, under the circumstances of this case, it was an improvident exercise of discretion to award plaintiff a counsel fee. The determination of plaintiff's alimony and counsel fee, if any, should be reserved for the trial court. It appears that the orders appealed from were based in part upon a report of the Conciliation Commissioner not contained in the record, which, in turn, was based upon informal and unrecorded discussions had with the parties. The extent of Special Term's reliance upon the report cannot be determined. Under other circumstances we would remand the proceedings for a hearing and findings of fact. However, considering the temporary nature of the orders appealed from and the fact that there are children involved, we have reviewed the orders solely upon the affidavits submitted at Special Term. As we have repeatedly stated, a speedy trial is the surest way of correcting any inequities which may arise in awards pendente lite (cf. Lebovics v. Lebovics, 34 A.D.2d 783). Rabin, P.J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.