Loew v. Loew

82 A.D.2d 973, 440 N.Y.S.2d 414, 1981 N.Y. App. Div. LEXIS 14709

Opinions

Appeal from that part of an order of the Family Court of Broome County (Whiting, Jr., J.), entered June 19,1980, which directed defendant to pay $120 per week in child support. Although the parties’ separation agreement, which did not merge in their subsequent divorce, plainly envisioned that some of the wife’s alimony would be devoted to the support of the children, in this case we do not find the later change in that custodial arrangement to be a sufficiently unanticipated or unreasonable change in circumstance to justify a departure from that accord (cf. Matter ofBoden v Boden, 42 NY2d 210, 213). Considering the age of the children, the fact that the husband had agreed to bear the expense of their college education, the termination of the support payments fixed by the agreement when he obtained custody and, particularly the absence of any provision for a reduction in alimony should they become emancipated or no longer reside with their mother, it would appear that the terms of the agreement were fully intended to cover all the needs of the children. Moreover, while both parents share in the responsibility to support their children (Family Ct Act, § 413), there was no showing here that this obligation was not being met or could not be met by the husband. Accordingly, the order appealed from should be modified by reversing the portion that directed the mother to make child support payments (see Matter of Bender v Bender, 72 AD2d 745). Order modified, on the law and the facts, by reversing so much thereof as directed defendant to make child support payments, and, as so modified, affirmed, with costs. Sweeney, J.P., Kane and Mikoll, JJ., concur.