Monesi v. Monesi

55 A.D.2d 1020, 391 N.Y.S.2d 219, 1977 N.Y. App. Div. LEXIS 10367

Opinion

Order unanimously reversed, without costs, and matter remitted to Erie County Family Court for further proceedings in accordance with the following memorandum: Petitioner successfully moved for an order modifying a prior support award and directing respondent to assume the cost of a private high school education for the divorced couple’s son. In construing the scope of a father’s duty to provide for the education of his children, it has been held that "a father is not required to pay for his child’s private school tuition where the community makes available * * * through the public school system the education which each child is entitled to as a matter of course” (Wagner v Wagner, 51 Misc 2d 574, 576, affd 28 AD2d 828, mot for lv to app dsmd 20 NY2d 803). Here however, petitioner alleged that the child’s inability to function within the public school system necessitated his enrollment in a private school. When a party seeks modification of a prior support order based upon a change in circumstances, the court should conduct a full hearing to determine whether the alleged change warrants modification (Rollins v Rollins, 33 AD2d 990). In the instant case the grant of the motion absent any proof of the child’s academic performance and educational difficulties in the public schools was error. (Appeal from order of Erie County Family Court — modify support.) Present — Moule, J. P., Cardamone, Simons, Dillon and Witmer, JJ.