(dissenting). Plaintiff sued for a divorce, recovery of moneys expended for necessaries for herself and the two children of the marriage and to impose a constructive trust in *257her favor over the matrimonial home, a house located in Scarsdale, New York. After 14 days of trial, a separation agreement was entered into under the terms of which plaintiff was granted $15,000 a year in alimony and $25,000 in child support. Additionally, she was paid $35,000 to compensate her for moneys expended for necessaries and title to the marital home was conveyed to her subject to the limitation that in the event the home was sold, defendant was to receive so much of the proceeds as exceeded $100,000 after deduction of all sales expenses. The separation agreement further provided that counsel fee to be awarded to plaintiff’s attorneys was to be left for determination by the court.
Upon the entry into the agreement, defendant withdrew his answer and a judgment of divorce was granted to the plaintiff incorporating the provisions of the separation agreement. Thereupon plaintiff moved for an award of counsel fee in the amount of $101,091.25 plus an additional sum of $14,937.75 for disbursements claimed to have been expended for expert and other services. The application was presented and determined solely on papers. These disclosed, among other things, that plaintiff had entered into a retainer agreement with her attorneys pursuant to which she paid them the sum of $15,-000.
The trial court found the reasonable value of the services rendered in connection with the divorce litigation to be $40,-000. She allocated $10,000 of the fee paid by plaintiff to counsel to that cause of action, leaving a balance of $30,000 which defendant was directed to pay, together with the sum of $7,500 for other disbursements.
We are all of the opinion that the valuation placed by the trial court on the services rendered, as well as the amount fixed for other disbursements, including the necessary experts, was fair and reasonable. We are also in agreement that the defendant’s litigiousness contributed, in part, to the plaintiff’s need for legal services. However, we differ from the majority and, perforce, the trial court, in three respects.
First, the retainer agreement has never been submitted to the court. Thus, it cannot be determined whether the obligation to pay was undertaken by plaintiff or her father, and whether the undertaking was contingent, at least in part, or absolute. This information is critical to a proper disposition.
Secondly, there has been no allocation of any portion of the fee to the monetary benefit conferred upon the children of the *258marriage. Of the $40,000 payable annually under the decree for alimony and child support, $25,000 or s/s of the total is for child support. The obligation of the parent for child support is one of the cornerstones of our law. To the extent that legal services are made necessary to achieve that objective, the law may require the parent responsible therefor to pay for such services (Matter of Chayet v Chayet, 44 AD2d 580; Matter of Carole K. v Arnold K., 87 Misc 2d 547; Matter of Juliette S. v William S., 79 Misc 2d 765). Whether the settlement negotiations which preceded the trial made provision for adequate support of the children is unknown to us, as presumptively, it was to the trial court. Hence, we cannot determine the amount of the fee apportionable to the children’s recovery. This, in turn, frustrates our capacity to fix the amount of the counsel fee award chargeable to defendant.
Finally, there remains the question of the capacity of the plaintiff to pay for the services rendered. In Kann v Kann (38 AD2d 545), and kindred cases, we have pointed out that the purpose of the award of counsel fee in matrimonial actions is to insure representation to a wife who otherwise might not be able to afford an attorney. However, in balancing the elements involved in determining whether counsel fee is to be awarded and the amount thereof, we have made plain that due consideration is to be given to "the relevant needs and circumstances of the parties” (Blauner v Blauner, 60 AD2d 215, 218). Here, the trial court reported a diminution in the stockholdings of plaintiff of somewhat more than $70,000. While part of this sum may be explained away by the expenditures of plaintiff for necessaries, the disposition of this claim for $35,-000 still leaves a substantial gap.
An evidentiary hearing is necessary to establish the facts. Accordingly, I would reverse and remand for further proceedings not inconsistent herewith.
Kupferman J. P., and Sandler, J., concur with Sullivan, J.; Lane and Bloom, JJ., dissent in an opinion by Bloom, J.
Order, Supreme Court, New York County, entered on October 23, 1978, affirmed, without costs and without disbursements.