Submitted May 4, 2001.
May 29, 2001.
In an action for a divorce and ancillary relief, the plaintiff appeals from so much of an amended judgment of the Supreme Court, Rockland 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.
Ellen B. Holtzman, Nanuet, N.Y., for appellant-respondent.
David Warren, Nanuet, N.Y., for respondent-appellant.
Before: GABRIEL M. KRAUSMAN, J.P., SONDRA MILLER, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ.
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, Rockland County, for a new determination on the issue of counsel fees.
Contrary to the plaintiff's 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]; Chan v. Kwan Chan, 267 A.D.2d 413; Matter of Cassano v. Cassano, 203 A.D.2d 563, affd 85 N.Y.2d 649; Allen L. v. Myrna L., 224 A.D.2d 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.