The ruling of the court below in dismissing the plaintiff’s action was based upon the view that plaintiff had failed to offer sufficient evidence that he had resided in the State for the statutory period prescribed by G. S., 50-5 (4), and G. S., 50-6, before instituting his action for divorce.
Both the fact of marriage and that there had been a separation of husband and wife and cessation of marital relations since 1937 were admitted in the pleadings and shown by plaintiff’s uncontradicted testimony. Upon the question of residence plaintiff testified that he was born in Chowan County, had lived in Tyrrell and Perquimans, where he had paid his taxes, and was now employed in Plymouth, North Carolina; that in 1938 he went to work in Norfolk, Virginia, but returned once or twice each month; that he did not intend to make Virginia his home, but it was his intention to remain a citizen of North Carolina.
He further testified that in 1942 the defendant, a resident of Pasquo-tank County, caused his arrest and conviction for failing to support his infant children, and he was required to make weekly payments for this purpose, which he has done. He also testified that in 1942 he instituted action for divorce in Pasquotank County, but on account of the failure of his counsel to advise him when the case was set for trial, his action *543was dismissed; that thereafter, acting upon tbe advice of an attorney in Norfolk that if be slept in Virginia during tbe week while working there be would be considered a resident of that state, be brought suit for divorce in a Norfolk court, alleging in bis complaint that be was a resident of Virginia. No divorce, however, was granted, and tbe case was subsequently dismissed.
This evidence, if accepted, would seem to be sufficient to be submitted to tbe jury on tbe essential issue of residence. Ellis v. Ellis, 190 N. C., 418, 130 S. E., 7. Having been continuously a resident of North Carolina up to tbe time be went to Norfolk to engage temporarily in work there, in order to constitute tbe plaintiff a nonresident of this State bis stay in Virginia must have been coupled with tbe intention to make that bis home or to live there permanently or indefinitely, which be here disavows. Roanoke Rapids v. Patterson, 184 N. C., 135, 113 S. E., 603; Oliver v. Oliver, 219 N. C., 299, 13 S. E. (2d), 549; S. v. Williams, 224 N. C., 183, 29 S. E. (2d), 744; Black’s Law Dictionary.
Tbe fact that under mistaken advice be instituted an action for divorce in Virginia upon allegations of residence there would not constitute an estoppel. This would be evidence against him on tbe issue of residence, but not conclusive. Bank v. McCaskill, 174 N. C., 362, 93 S. E., 905.
Tbe plaintiff’s evidence would seem to be sufficient to show a separation and living apart, such as contemplated by tbe statute as one of tbe grounds for divorce. Byers v. Byers, 222 N. C., 298, 22 S. E. (2d), 902; Hyder v. Hyder, 215 N. C., 239, 1 S. E. (2d), 540; Dudley v. Dudley, 225 N. C., 83, 33 S. E. (2d), 489. Nor would tbe plaintiff’s admission that be bad subsequently been convicted for failing to support bis children be alone sufficient to defeat bis present action under tbe principle enunciated by this Court in Reynolds v. Reynolds, 208 N. C., 428, 181 S. E., 338; Brown v. Brown, 213 N. C., 347, 196 S. E., 333; Byers v. Byers, 223 N. C., 85, 25 S. E. (2d), 466; Pharr v. Pharr, 223 N. C., 115, 25 S. E. (2d), 471.
Tbe allowance by tbe court to tbe defendant of reasonable counsel fees, in order to enable her to make her defense to plaintiff’s suit, was based upon allgations contained in her verified answer, and upon tbe facts presumably found in accordance therewith. Tbe amount under tbe circumstances of this case may not be held excessive. Tbe power of tbe court to make tbe allowance must be upheld. Medlin v. Medlin, 175 N. C., 529, 95 S. E., 857.
For tbe reasons stated, tbe judgment of nonsuit is
Reversed.