Cwiklinski v. Cwiklinski

115 A.D.2d 951, 497 N.Y.S.2d 529, 1985 N.Y. App. Div. LEXIS 55313

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1985
• Status: Published

Opinion

Judgment unanimously modified, on the law, and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Niagara County, for further proceedings, in accordance with the following memorandum: Our review of the record reveals that the trial court properly exercised its discretion in equitably distributing the marital property and awarding defendant maintenance for a limited period.

The trial court abused its discretion, however, by including in its award of child support an amount intended to pay for the private school education of the parties’ eight-year-old child. The record reveals that the parties decided they would not have provided their child with a private school education had they remained together. Absent special circumstances, not present here, a public school may provide the child a suitable education (see, Matter of Ladner v larussi, 92 AD2d 895; Baiamonte v Baiamonte, 67 AD2d 992; Matter of Habas v Habas, 56 AD2d 747, 748; Wagner v Wagner, 51 Misc 2d 574, affd without opn 28 AD2d 828, lv dismissed 20 NY2d 803).

The court also abused its discretion by awarding defendant counsel fees. No formal application for counsel fees was made and no documentation was presented regarding the legal services rendered or the time spent on the case (see, Falcone v Falcone, 112 AD2d 796; Piercy v Piercy, 97 AD2d 972, 973; Mangum v Mangum, 93 AD2d 749). Accordingly, we remit this matter for further proceedings with respect to counsel fees and child support to the extent the court’s award included an amount for the child’s private education. (Appeal from judgment of Supreme Court, Niagara County, Hannigan, J.—divorce.) Present—Hancock, Jr., J. P., Doerr, Boomer, Green and O’Donnell, JJ.