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CARMEN KATZ, Respondent, v. ARTHUR KATZ, Appellant.

Judgment modified, on the facts, by deleting the fourth decretal paragraph and substituting therefor a provision directing that the defendant husband pay one half of the plaintiff wife's attorney's fees, viz., $3,400, and that the $1,568.50 held in escrow be paid to plaintiff's attorney. As so modified, judgment affirmed, without costs or disbursements.

The defendant seeks to avoid reimbursing his former wife for her educational expenses on the ground that she is self-supporting, thereby relieving the defendant of his long-term obligation of support. Under the circumstances presented, we conclude that the court properly directed the defendant to pay $50 per week for five years to the plaintiff to defray the costs of her education ( cf. Morgan v. Morgan, 52 A.D.2d 804).

With regard to the award of counsel fees to the plaintiff wife, "although proof of indigency is not a prerequisite of entitlement to counsel fees * * * `the circumstances of the case and of the respective parties' * * * may not require that the burden of payment of counsel fees be placed on the husband" ( Ackerman v Ackerman, 96 A.D.2d 543; see also, Walsh v. Walsh, 92 A.D.2d 345, 347; Kaplan v. Kaplan, 77 A.D.2d 891, 892, appeal dismissed 51 N.Y.2d 822). Given the circumstances of the respective parties, including the fact that custody of the parties' three female children was awarded to the defendant, the plaintiff's counsel fees should have been equally divided between the parties.

We have considered the defendant's remaining contentions and find them to be without merit. Mollen, P.J., Titone, O'Connor and Rubin, JJ., concur.

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KATZ v. KATZ
(May 13, 1985)