La Porte v. La Porte

Order unanimously reversed, without costs, and application denied. Memorandum: Defendant appeals from an order, dated September 30, 1977, granting plaintiff, his former wife, $890 for attorney’s fees and disbursements pending defendant’s appeal (La Porte v La Porte, 60 AD2d 966) from a divorce decree. Inasmuch as the primary basis for defendant’s appeal concerning the propriety of the direction that plaintiff have sole occupancy of the marital home was meritorious (see Sharer v Sharer, 60 AD2d 780), a fact now apparently conceded by plaintiff after defendant has incurred legal expenses in connection with the preparation of the appeal and presentation of oral argument, it would be inequitable to compel defendant to pay in addition to his own expenses the legal fees of plaintiff, particularly in light of plaintiff’s apparent ability to pay her own legal fees. (See Domestic Relations Law; § 237; Kann v Kann, 38 AD2d 545; Martin v Martin, 28 AD2d 897.) (Appeal from order of Oneida Supreme Court— *967attorney fees and expenses.) Present—Marsh, P. J., Cardamone, Dillon, Hancock, Jr., and Witmer, JJ.