
    In the Matter of Susan B. Hoyt, Respondent, v Andrew Boyar, Appellant.
   Appeal from a judgment of the Family Court of Sullivan County, entered January 12, 1979, which (1) denied appellant’s application for custody of the parties’ minor child, and (2) ordered appellant to pay respondent $2,500 as attorney’s fees. This proceeding was precipitated by appellant’s desire to prevent his former wife, respondent, from moving to Puerto Rico with their son and thereby making visitation more difficult for appellant. Appellant contends that Family Court erred in continuing custody in the respondent. However, the burden of proof upon appellant in seeking a change was not conclusively carried by him and the Family Court ruled in the best interests of the child. The continuance of custody is affirmed. (Matter of Noel v Derrick, 71 AD2d 704, 705; People ex rel. Selbert v Selbert, 60 AD2d 692, 693.) As to counsel fees, the test adopted by this court in Matter of Frye v Truhn, 68 AD2d 989, 990) was that "such an award of counsel fees can only be justified when it is necessary to insure that an indigent wife has legal representation.” The present record does not contain any proof of such necessity on the part of the respondent and, accordingly, that portion of the judgment must be reversed. Judgment modified, on the law and the facts, by striking the last decretal paragraph which awarded counsel fees to Susan Boyar Hoyt, and, as so modified, affirmed, with costs to respondent Susan Boyar Hoyt. Greenblott, J. P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.  