Sheridan v. Sperber

Feb 14, 2000
Versions:269 A.D.2d 439
702 N.Y.S.2d 894
2000 N.Y. App. Div. LEXIS 1371

—In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of (1) a judgment of the Supreme Court, Westchester County (Nicolai, J.), entered November 20, 1998, and (2) a resettled judgment of the same court, entered March 16, 1999, as, after a nonjury trial, awarded the plaintiff wife maintenance of $5,000 per month until her remarriage or the death of one of the parties, awarded the plaintiff wife child support of $1,560 per month, and directed him to pay for the college education of the parties’ child up to an amount equal to the cost of attendance at a “State university”.

Ordered that the appeal from the judgment entered November 20, 1998, is dismissed, as it was superseded by the resettled judgment; and it is further,

Ordered that the resettled judgment entered March 16, 1999, is modified, on the law, by adding thereto a provision that the amount the defendant contributes to the child’s college expenses shall be deducted from his child support obligation; as so modified, the resettled judgment is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

*440Taking into consideration all of the relevant factors, including the standard of living enjoyed by the parties during the marriage, the award of maintenance of $5,000 per month until the plaintiffs remarriage or the death of either party was a provident exercise of discretion (see, Domestic Relations Law § 236 [B] [6]; Summer v Summer, 85 NY2d 1014; Shad v Shad, 213 AD2d 622; Malamut v Malamut, 133 AD2d 101; cf., Zabin v Zabin, 176 AD2d 262). Furthermore, the direction that the defendant pay college expenses equal to the cost of attendance at a State university upon consultation with him was proper (see, Domestic Relations Law § 240 [1-b] [c] [7]; Matter of Cassano v Cassano, 203 AD2d 563, affd 85 NY2d 649; Hirsch v Hirsch, 142 AD2d 138,145). However, the Supreme Court erred in directing the defendant to pay child support and contribute to the college expenses without including a provision reducing the level of child support or crediting him for any amounts he contributes toward college expenses when the child lives away from home while attending college (see, Justino v Justino, 238 AD2d 549; Litwack v Litwack, 237 AD2d 580; Reinisch v Reinisch, 226 AD2d 615). Therefore, the resettled judgment is modified accordingly.

The defendant’s remaining contention is without merit. Sullivan, J. P., S. Miller, Friedmann and Schmidt, JJ., concur.