Spellman v. Spellman

33 A.D.2d 683, 305 N.Y.S.2d 842, 1969 N.Y. App. Div. LEXIS 2793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1969
• Status: Published

Opinion

Order entered September 15, 1969, granting defendant wife’s motion for temporary alimony and counsel fees in an action for divorce, unanimously reversed on the law, on the facts, and in the exercise of discretion, without costs and without disbursements to either party, and the motion denied, but with leave to defendant wife to apply to the trial court for the relief sought on the motion. These parties were married in 1935, becoming separated in 1968. Since the separation the wife has continued to occupy alone the marital apartment, a co-operative, the rent of which has concededly been paid by the husband on a voluntary basis. Similarly, the husband has paid all the utilities, gas, electricity, telephone, medical and dental bills, together with the sum of $80 per week. There is an indication the wife has some not insignificant assets of her own. Her estimation of his wealth is seriously challenged by him. In any event, there is no showing of anything approximating genuine necessity on her part for temporary relief. To the contrary, prima facie, she is still living on a not unreasonable preseparation standard. That is all she is entitled to. (Hunter v. Hunter, 10 A D 2d 291.) As we have before indicated, applications of this character are discouraged, failing a showing of the necessity of temporary relief, particularly when as here, a trial is imminent, and manifestly a trial court is in a better position to make appropriate provisions in all respects. (Gladstone v. Gladstone, 23 A D 2d 649.) Concur— Stevens, P. J., Eager, McGivern, Markewich and Nunez, JJ.