Stromnes v. Stromnes

201 A.D.2d 981, 607 N.Y.S.2d 839, 1994 N.Y. App. Div. LEXIS 1634

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The court properly denied respondent’s request for a downward modification of unallocated child support, ordered in the judg ment of divorce that incorporated but did not merge the parties’ separation agreement. Respondent contended that his cross petition for modification should have been granted because one child was emancipated and another no longer resided with petitioner (see, Urban v Urban, 90 AD2d 793, 794; Peters v Peters, 14 AD2d 778). An unallocated support order should not be reduced "without any consideration of the financial condition and needs of all the parties”; indeed, "the emancipation of one (or more) child(ren) does not necessarily mean that the total amount of support should not remain the same for the other children in view of possible changes in the needs of the parties” (Urban v Urban, supra, at 794). Respondent failed to prove that the amount of unallocated child support is excessive based on the needs of the parties’ daughter. The court properly directed him, therefore, to pay arrears for the period in which he had unilaterally reduced the amount of child support. The court erred, however, in directing respondent to pay a portion of his daughter’s parochial high school expenses and unreimbursed medical expenses, in the absence of any showing by petitioner that the full amount of child support ordered was insufficient to meet the child’s needs. We modify, therefore, by vacating the direction that respondent pay a portion of his daughter’s parochial high school expenses and unreimbursed medical expenses. (Appeal from Order of Richmond County Family Court, Cognetta, Jr., J. — Child Support.) Present — Callahan, J. P., Pine, Lawton, Doerr and Boehm, JJ.