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JOHN A. MARIN, APPELLANT-RESPONDENT, v. PATRICIA A. MARIN, RESPONDENT-APPELLANT.

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][7]; 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.

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MARIN v. MARIN
(May 29, 2001)