Marin v. Marin

283 A.D.2d 615, 725 N.Y.S.2d 871, 2001 N.Y. App. Div. LEXIS 5531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2001
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the plaintiff appeals from so much of an amended judgment of the Supreme Court, Rock-land County (Sherwood, J.), entered March 3, 2000, as, after a nonjury trial, awarded the defendant an attorney’s fee in the sum of $12,500 and directed him to pay 50% of the cost of private parochial school tuition for the parties’ two children, and the defendant cross-appeals from stated portions of the same amended judgment.

Ordered that the defendant’s cross appeal from the amended judgment is dismissed as abandoned, without costs or disbursements; and it is further,

Ordered that the amended judgment is modified by deleting the provision thereof awarding the defendant an attorney’s fee in the sum of $12,500; as so modified, the amended judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Rock-land County, for a new determination on the issue of counsel fees.

Contrary to the plaintiffs contention, the trial court providently exercised its discretion in directing him to pay 50% of the cost of private parochial school tuition for the parties’ two children (see, Domestic Relations Law § 240 [1-b] [c] [7]; Chan v Kwan Chan, 267 AD2d 413; Matter of Cassano v Cassano, 203 AD2d 563, affd 85 NY2d 649; Allen L. v Myrna L., 224 AD2d 495).

The trial court improvidently exercised its discretion in determining the issue of counsel fees without giving the plaintiff a sufficient opportunity to submit evidence on the issue. Krausman, J. P., S. Miller, McGinity and Schmidt, JJ., concur.