
    Fred Marinelli, Appellant, v. Sylvia Marinelli, Respondent.
   The plaintiff instituted this action for a separation on the grounds of cruelty, abandonment and adultery on the part of defendant. He alleged that while a legal resident of New York, she went to Florida and fraudulently established an alleged residence for the sole purpose of obtaining a divorce from him and obtaining the custody of their child, and he demanded that custody of the child be awarded to him. The wife’s answer pleaded the Florida divorce decree as a defense. She also pleaded cruelty and nonsupport on the part of the plaintiff as a defense and counterclaim. Her prayer for relief demanded a dismissal of the complaint and, in the alternative, a decree of separation in her favor. The wife moved for temporary alimony, a counsel fee and custody of the child. Custody of the child was awarded to the husband, but temporary alimony for the support of the wife and a counsel fee were granted. The husband appeals from so much of the order as awarded the alimony and counsel fee. Order modified on the facts by adding to the first ordering paragraph, after the word granted ”, the following: as to counsel fee and denied as to temporary alimony ” and by striking out the second ordering paragraph. As so modified, the order is affirmed, without costs. The plaintiff alleges that the marital relation exists and charges the defendant with adultery. To meet these allegations, counsel fee could be granted under section 1169 of the Civil Practice Act. {Marcus v. Marcus, 274 App. Div. 805.) However, defendant maintains that she had and has a valid residence in Florida and that the decree of the court in that State is valid. She insists she is no longer the wife of the plaintiff. It was, therefore, an improvident exercise of discretion to award her support as a wife pending the trial. Nolan, P. J., Carswell, Johnston, Wenzel and MaeCrate, JJ, concur.  