Kotzbauer v. Kotzbauer , 283 A.D. 739 ( 1954 )

In an action for separation, defendant appeals from an order denying his motion to compel plaintiff to serve and file a verified statement setting forth her post office address and residence pursuant to rule 9-a of the Rules of Civil Practice, granting plaintiff’s motion for alimony pendente lite at the rate of $65 a week, allowing her a counsel fee of $500 and making no provision for visitation of the issue of the marriage which was sought by the defendant. Order modified (1) by striking from the third ordering paragraph the words and figure “ Sixty-five Dollars ($65.00) ” and by substituting in place thereof the words and figure “Fifty Dollars ($50.00) ”; (2) by striking from the fourth ordering paragraph everything which follows the words “sum of” and by substituting in place thereof an allowance of a counsel fee of $350, and (3) by adding thereto a further provision that the plaintiff shall have the custody of the infant child of the parties but that the defendant shall have the right of visitation at the home of the plaintiff at a time to be agreed upon by the parties or for the fixation of which the defendant, if he is so advised, may apply at Special Term if no such agreement is reached. As so modified the order is affirmed, without costs. Two hundred dollars of the counsel fee shall be paid on account within twenty days from the entry of the order hereon and the balance of $150 shall be paid on or before the day of trial. Under the circumstances, it was an improvident exercise of discretion to have allowed temporary alimony of $65 a week and a counsel fee of $500. Nolan, P. J., Adel, Wenzel, MacCrate and Murphy, JJ., concur.