Opinion
March 26, 1962
In an action for a judicial separation, defendant appeals from so much of an order of the Supreme Court, Kings County, dated November 15, 1961, as, upon motion of the plaintiff: (1) granted her temporary alimony of $40 a week for herself and the infant child of the marriage; (2) awarded her $300 for a temporary counsel fee, with the right to apply for additional counsel fees; and (3) referred to an Official Referee the issues with respect to the amount to be paid for the permanent support of the plaintiff and the child, with respect to the payment of additional counsel fees and with respect to the return of certain personal property to the plaintiff. Said order also granted defendant's cross motion for summary judgment pursuant to subdivision 4 of rule 113 of the Rules of Civil Practice, but no appeal has been taken with respect to such portion of the order. Order modified: (1) by striking out the second, third, fourth and fifth decretal paragraphs directing the payment of temporary alimony and a temporary counsel fee; and (2) by striking out from the first decretal paragraph the provision which refers to an Official Referee "the payment of additional counsel fees". As so modified, the order, insofar as appealed from, is affirmed, without costs. The parties were married in New York; plaintiff and the child of the marriage have been living in New York since 1957. Defendant is a resident of New Jersey where the parties had resided together from 1955 until 1957 when plaintiff moved to New York with the child. In this action by the wife for a separation, the court, on documentary evidence, found that a foreign divorce had previously been granted to the husband in an ex parte action in New Jersey, and therefore properly granted the husband's cross motion for summary judgment ( Hoenig v. Hoenig, 28 Misc.2d 429). Section 1170-b of the Civil Practice Act was enacted to protect such a wife, whose right to support from her husband may be completely cut off by an ex parte foreign divorce decree in the absence of a prior New York separation decree with provision for maintenance. Plaintiff as a "New York" wife qualifies for such protection ( Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, affd. 354 U.S. 416). However, to be entitled to maintenance under the statute, plaintiff must first establish her right to a separation, which would be granted but for the foreign ex parte decree ( Vanderbilt v. Vanderbilt, supra; "Dominick" v. "Dominick", 26 Misc.2d 344, 351). Hence, the action was properly referred to an Official Referee to determine the amount of the maintenance, if any, to which the plaintiff is entitled. But an award for counsel fees and an award for the temporary maintenance of the wife and the child are not authorized by either section 1170-a or 1170-b of the Civil Practice Act; and, in the absence of statutory authority therefor, the plaintiff is not entitled to any such award ( Meenan v. Meenan 286 App. Div. 775, affd. 2 N.Y.2d 802; Goldstein v. Goldstein, 16 Misc.2d 905). Beldock, P.J., Ughetta, Christ, Hill and Hopkins, JJ., concur.