Opinion
December 7, 1978
Order, Supreme Court, New York County, entered April 13, 1978 which, inter alia, awarded a counsel fee, pendente lite, in the sum of $7,500, unanimously modified, on the law and the facts, to reduce the counsel fee to $3,750, payable within 20 days after service of a copy of the order to be entered hereon with notice of entry, and, except, as thus modified, affirmed, without costs and without disbursements. Although it is axiomatic that no award of counsel fees, pendente lite, may be made to a wife who is financially able to pay (Kann v. Kann, 38 A.D.2d 545), we do not view the wife's ownership of stock, valued at $35,000, to be a barometer of her ability to pay. She has two young children, ages six and two, to take care of, and has no source of income other than temporary alimony and support. A sale of the stock, a gift from her father, poses inevitable tax consequences which might well prove to be an economic disaster. However, we do consider the award here to be excessive to the extent indicated.
Concur — Silverman, J.P., Fein, Markewich, Lynch and Sullivan, JJ.