Opinion
March 23, 1978
Order of the Supreme Court, New York County, entered December 2, 1977, which directed appellant to pay respondent the sum of $200 a week for the support of the parties' two children, together with counsel fees of $1,500, unanimously modified, on the facts and in the exercise of discretion, without costs or disbursements, to provide for support of the children in the sum of $600 a month retroactive to December 2, 1977 and to reduce counsel fees to $1,000, and otherwise affirmed. After reviewing the relative financial positions of appellant and respondent, we agree with appellant that the provisions for support and counsel fees contained in the order of December 2, 1977 are beyond the financial ability of the appellant, and accordingly, are excessive. There is evidence to show that respondent, an attorney admitted to practice in Puerto Rico, is able to contribute some financial support to the children. Such support should be shared by both parents (Matter of Carter v Carter, 58 A.D.2d 438). Although tuition at private school is not a cost which our courts can provide (Matter of Berland v Berland, 47 A.D.2d 540; Winston v Winston, 50 A.D.2d 527), Special Term in awarding support recognized that the Puerto Rican divorce decree provided for the children's schooling at private school. Our award of $600 per month is predicated on the assumption that appellant does not plan to pay tuition for private school for the two children. In the event that he pays such tuition hereafter, for either or both of the children, he is not precluded from applying for an appropriate modification of this order, if warranted. Appellant's failure to comply with the provisions of the Puerto Rican decree justified this action by respondent. In view of respondent's lack of assets, an award of counsel fees is proper (Domestic Relations Law, § 237). Nevertheless, the financial position of appellant does not justify the award of counsel fees of $1,500. Such award is reduced to $1,000.
Concur — Lupiano, J.P., Birns, Evans and Sandler, JJ.