Finn v. Finn

222 A.D. 34 | N.Y. App. Div. | 1927

McAvoy, J.

The learned court at Special Term directed defendant in this action to pay plaintiff $2,641.50, the amount of expenses for doctors, nurses and medical supplies for the benefit of the infant child of the parties. It also denied plaintiff’s motion for an increase in the sum to provide for the child’s maintenance. There are cross-appeals by the parties as to the relief granted and that denied.

The parties are divorced and a fixed amount has been set in the decree as the sum to be paid by the husband to support the issue of the marriage. There is also a provision in the decree which provides that no modification shall be sought for a period of two years. The parties made a separation agreement providing for the payment of alimony for the support of plaintiff and the infant child as well as providing for the custody of the child, which allowed the child to remain with the mother except for four periods of two weeks each during the course of the year. Alimony was to cease upon remarriage. The plaintiff has remarried and an application was made to the court to fix a stun to be paid for the support of the child alone.

In December, 1924, an order was made directing the defendant to pay $27.50 a week for the support of the child, which was fixed as a reasonable amount for its maintenance. The decree also directed that defendant maintain insurance policies for the benefit of the child upon his life in the sum of $15,000.

The two years during which modification was not to be asked for, expired December, 1926. The money sought to be recovered in this action covered expenses incurred during the two years, due to the illness of the child in March and April, 1926.

We consider that this order directing the payment of expenses for the child for these extraordinary sums is in contravention of the provision fixing the maintenance amount at twenty-seven dollars and fifty cents a week. It also, in effect, disregards the stipulation not to apply for any more money during the two-year period. Although the application was made after the two years expired, it relates to provisions for maintenance during that period.

From the facts presented we also conclude that twenty-seven dollars and fifty cents weekly is enough for the present support of the child, in view of the defendant’s circumstances and in view of the age of the child, which is now about seven years.

The order so far as appealed from by the defendant should be reversed and the motion in said respect denied, and so far -as appealed from by the plaintiff affirmed, without costs.

Dowling, P. J., Merrell, Finch and Proskauer, JJ., concur.

Order so far as appealed from by the defendant reversed and the motion in said respect denied, and so far as appealed from by the plaintiff affirmed, without costs. Settle order on notice.