Brock v. Brook , 1 A.D.2d 973 ( 1956 )

In a consolidated action by appellant (1) for a judgment (a) declaring a Mexican divorce, obtained by respondent, to be null and void, (b) declaring the marital status of appellant and respondent, and (e) declaring a separation agreement between the parties to be null and void; and (2) for a separation, the appeal is from an order insofar as it denies appellant’s motion for temporary alimony and a counsel fee and refers said motion to the trial court for determination. Order modified so as to provide that respondent pay appellant $1,000 on account of counsel fees, and that the balance, if any, be left for determination by the trial court. As so modified, order, insofar as appealed from, affirmed, with $10 costs and disbursements to appellant. The amount allowed on account of counsel fees is to be paid within twenty days after the entry of the order hereon. Alimony pendente lite and counsel fees are not allowed until a separation agreement is set aside. Such ■ relief may not be had on conflicting affidavits but should be left to the trial court. (Sullivan v. Sullivan, 285 App. Div. 967; Reeve v. Reeve, 279 App. Div. 618; Botway v. Botway, 273 App. Div. 948; Henning v. Henning, 272 App. Div. 676; Davis v. Davis, 195 App. Div. 430.) Appellant, however, is entitled to a counsel fee in her action to declare null and void the divorce decree obtained by respondent in Mexico, in which she did not appear. (Civ. Prac. Act, § 1169-a; Harris v. Harris, 279 App. Div. 542; Long v. Long, 281 App. Div. 254.) Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur. [See post, p. 1026.]