Toppel v. Toppel

67 A.D.2d 628, 412 N.Y.S.2d 17, 1979 N.Y. App. Div. LEXIS 10155

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1979
• Status: Published

Opinion

— Judgment, Supreme Court, New York County, entered July 5, 1978, insofar as appealed from, which, inter alia, awarded custody of Lori to defendant and directed plaintiff to made additional support payments of $200 per week to the defendant for the support and maintenance of that child, unanimously modified, on the law, on the facts, and in the exercise of discretion, by vacating those provisions (1) awarding custody to the defendant and (2) directing the payment of additional support in the sum of $200, and, as modified, otherwise affirmed, without costs and without disbursements. A parent may not be awarded the custody of a child over 18 years of age (Domestic Relations Law, §§ 2, 240; Blauner v Blauner, 60 AD2d 215, 218; Silverman v Silverman, 50 AD2d 824). Hence, it was improper for the court to have awarded custody of Lori to the defendant. Although Lori had reached her majority, the plaintiff and the defendant were both under a continuing duty to support her until she reached 21 years of age. (Family Ct Act, §§ 413, 414; Matter of Parker v Stage, 43 NY2d 128, 133; Blauner v Blauner, supra; Stern v Stern, 59 AD2d 857; Matter of Carter v Carter, 58 AD2d 438.) However, the record indicates that, even without the additional payment of $200 per week, Lori was receiving more than adequate support from both parents. Therefore, it was an abuse of discretion for the court to direct that the plaintiff make the additional payments of $200 per week to the defendant for the support and maintenance of the child during the four-month period that the child was not attending school. Concur — Murphy, P. J., Lupiano, Silverman, Evans and Fein, JJ.