Belsky v. Belsky

• Decision Date: 08 April 1991
• Citation: 172 A.D.2d 576,568 N.Y.S.2d 627
• Parties: Alan BELSKY, Appellant, v. Judith BELSKY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 627

568 N.Y.S.2d 627

172 A.D.2d 576

Alan BELSKY, Appellant, v. Judith BELSKY, Respondent.

Supreme Court, Appellate Division,

Second Department.

April 8, 1991.

H. Michael Stern, Massapequa, for appellant.

Rosen & Leff, Hempstead (Wilma Kerner Miller, of counsel; Andrew T. Towner, on the brief), for respondent.

Before SULLIVAN, J.P., and EIBER, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by a judgment entered April 3, 1985, in which the provisions of a stipulation entered into by the parties in open court were incorporated but not merged, the plaintiff husband appeals from so much of an order of the Supreme Court, Nassau County (Morrison, J.), dated August 17, 1989, as denied his motion, inter alia, to modify the judgment of divorce to award him sole custody of the parties' son and child support.

ORDERED that the appeal from so much of the order as denied that branch of the plaintiff's motion which was for a change of custody is dismissed as academic; and it is further,

ORDERED that the order is otherwise affirmed insofar as appealed from; and it is further,

ORDERED that the defendant is awarded one bill of costs; and it is further,

ORDERED that the plaintiff-appellant personally, his attorney H. Michael Stern, and the defendant's appellate counsel are directed to appear at this court on May 8, 1991, at 12:00 Noon to be heard upon the issue of the imposition of appropriate sanctions or costs, if any, pursuant to 22 NYCRR 130-1.1.

The parties' only child, Peter, who is the subject of the instant custody dispute, attained the age of 18 on September 22, 1989, approximately one month after the Supreme Court denied the plaintiff's June 1989 motion, inter alia, for sole custody. As Peter has reached the age of majority he can no longer be the subject of a custody order (see, Reich v. Reich, 149 A.D.2d 676, 540 N.Y.S.2d 316; Adamec v. Adamec, 81 A.D.2d 600, 437 N.Y.S.2d 722; Toppel v. Toppel, 67 A.D.2d 628, 412 N.Y.S.2d 17; Silverman v. Silverman, 50 A.D.2d 824, 376 N.Y.S.2d 182). Accordingly, the issue of his custody is now academic (see Polito v. Polito, 168 A.D.2d 440, 562 N.Y.S.2d 561; Anastasia v. Anastasia, 100 A.D.2d 740, 473 N.Y.S.2d 667), and we need not reach the plaintiff's related claim that there should be an award of child support incident to a change of custody.

The plaintiff's claim that the court erred in denying his motion to modify the judgment of divorce by directing his former wife to contribute to Peter's child support, college expenses and insurance costs, are devoid of merit. Indeed these matters were explicitly provided for in the 1985 stipulation that settled the parties' divorce action. In that stipulation the plaintiff agreed to pay for Peter's college expenses in lieu of continued child support (see Neckers v. Neckers, 160 A.D.2d 693, 553 N.Y.S.2d 464). Moreover, the plaintiff agreed to pay for all relevant insurance coverage for Peter's benefit. In the absence of any allegations or evidence that any grounds exist to vacate the terms of their agreement (see, e.g., Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849), the parties are free to allocate their mutual support obligations (see, Matter of Brescia v. Fitts, 56 N.Y.2d 132, 451 N.Y.S.2d 68, 436 N.E.2d 518; Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791; Rubin v. Rubin, 119 A.D.2d 152, 506 N.Y.S.2d 44, aff'd 69 N.Y.2d 702, 512 N.Y.S.2d 364, 504 N.E.2d 691). As there is no evidence in the record that Peter's needs are not...