Baiamonte v. Baiamonte

— In an action for divorce, plaintiff appeals from (1) a judgment of the Supreme Court, Queens County, dated June 8, 1977, which, inter alia, dismissed his complaint, awarded custody of the infant issue of the marriage to defendant and directed him to make support payments, and (2) an order of the same court, dated December 5, 1977, which denied his motion for a mistrial or, in the alternative, a new trial. Judgment modified, on the law, by deleting the fifth decretal paragraph thereof, which directed plaintiff to continue payment of private school expenses including tuition, books, uniforms and transportation, and substituting therefor a provision that plaintiff is not responsbile for said private school expenses. As so modified, judgment affirmed, without costs or disbursements. Order affirmed, without costs or disbursements. In view of the availability of public educational facilities for the infant issue, and the absence of any proof that special circumstances exist which warrant enrollment of the infant issue in private schools, it was error for the trial court to direct plaintiff to continue payment of his children’s private school expenses (see Matter of Habas v Habas, 56 AD2d 747; Berry v Berry, 56 AD2d 522; Wagner v Wagner, 51 Mise 2d 574, affd 28 AD2d 828; Earle v Earle, 205 Mise 738; cf. Matter of Kotkin v Kerner, 29 AD2d 367). Titone, J. P., Suozzi, O’Connor and Lazer, JJ., concur.