Petitioner, former wife of respondent, filed a petition in Family Court for modification of the alimony provisions of a Mexican judgment of divorce on the ground that there had been a change of circumstances.
The parties were married in 1940. The 1965 decree of divorce incorporated by reference a nonmerger separation agreement which provided, among other things, that respondent pay petitioner $69 per week. The petition alleges that since the entry of the divorce decree there had been a change of circumstances in that the cost of living had increased, the needs of petitioner had increased and respondent’s earnings had increased. These allegations were sufficient under section 466 (subd. [c], par. [ii]) of the Family Court Act to warrant a hearing to determine whether modification was required, even though the petition contained no allegation that petitioner was in danger of becoming a public charge. (McMains v. McMains, 15 N Y 2d 283; Matter of Aranow v. Aranow, 57 Misc 2d 86.)
At the hearing petitioner testified that after the decree she was employed for four and a half years but now she is unable to work because of illness, had undergone two operations, has substantial debts, and is having difficulty living on the support provided by her former husband. On cross-examination she testified that she had not applied for welfare and did not know whether it was necessary to apply for welfare at that time. The court found that $69 per week was not sufficient to meet her basic necessities and increased the weekly payment to $79 but made no finding that she was in actual danger of becoming a public charge. It also awarded counsel fees.
*155Respondent argues that Family Court had no jurisdiction over this proceeding, therefore it could not increase the support payments or award counsel fees. We disagree.
In view of the existing valid separation agreement, adequate when made and not merged into the subsequent divorce decree, Family Court should not have increased the amount payable to the wife for support, in the absence of proof that she “ is actually unable to support herself on the amount heretofore allowed and is in actual danger of becoming a public charge ” (McMains v. McMains, supra, p. 285). In reaching this conclusion we do not determine that Family Court lacked jurisdiction in this proceeding, but merely that upon the proof it was error to increase the weekly payments. Section 466 (subd. [c], par. [ii]) of the Family Court Act, under which this proceeding was instituted, provided the court with jurisdiction to “ entertain an application to modify ” the Mexican decree where “ there has been a subsequent change of circumstances ’ ’ and 1 ‘ modification is required ”. However, although it had jurisdiction, we are con- ■ strained by the language of McMains to hold that, when a valid separation agreement was in effect, Family Court could not find a “ change of circumstances ” and a requirement for modification without a showing that petitioner was unable to support herself on the amount allowed and was in actual danger of becoming a public charge.
The dissent holds that, because of the separation agreement, Family Court was precluded from allowing counsel fees to petitioner. However, cases cited by the ‘dissenting Justice were decided without reference to section 438 of the Family Court Act which confers wide discretion on the court to award counsel fees to a wife or former wife “ in any proceeding ” under article 4. It may be noted that an award is not conditioned on success in the litigation (see discussion in Matter of Harvey v. Harvey, 62 Misc 2d 246; also Becker v. Becker, 46 Misc 2d 858).
In the present case, we do not believe Family Court abused its discretion in making an allowance for attorney’s fees, even though we have concluded that petitioner’s proof did not establish grounds for the modification of the Mexican decree which she sought (see Apkarian v. Apkarian, 39 A D 2d 609). The court found that the allegations contained in the petition were true and the record amply supports the conclusion that $69 per week is not sufficient to meet the basic necessities required -by petitioner. In these circumstances, a logical avenue of relief for petitioner was an application for increased support payments, which required legal counsel for which she had no funds. The *156fact that counsel’s efforts — which succeeded at the trial level — are now being rendered ineffectual, should not deprive him of his fees. Viewing petitioner’s financial situation, and having regard for the disposition made in McMains v. McMains (supra) by which the Court of Appeals gave strong indication that an upward modification of support might be warranted on the facts (15 NY 2d 283, 288, supra), despite the firm language of the opinion requiring imminent resort to public welfare funds, counsel for petitioner in the present case may well have felt that an application for modification was appropriate. Indeed, Family Court itself, fully aware of the McMains decision, was satisfied that an increase could and should be granted. For these reasons, we should not disturb the discretionary award of counsel fees.
The order should be modified to strike out the provision increasing weekly support payments from $69 to $79 and, as modified should be affirmed without costs. Respondent should be permitted to deduct from the future payments made pursuant to the separation agreement the sum of $5 per week until such time as he has been reimbursed for all payments in excess of $69 per week made by him since the order of June 8,1972 was entered.