Opinion
December 20, 1985
Appeal from the Supreme Court, Niagara County, Hannigan, J.
Present — Hancock, Jr., J.P., Doerr, Boomer, Green and O'Donnell, JJ.
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 Iarussi, 92 A.D.2d 895; Baiamonte v Baiamonte, 67 A.D.2d 992; Matter of Habas v Habas, 56 A.D.2d 747, 748; Wagner v Wagner, 51 Misc.2d 574, affd. without opn 28 A.D.2d 828, lv. dismissed 20 N.Y.2d 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 A.D.2d 796; Piercy v Piercy, 97 A.D.2d 972, 973; Mangum v Mangum, 93 A.D.2d 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.