Benson v. Benson

• Decision Date: 29 December 1980
• Citation: 79 A.D.2d 694,434 N.Y.S.2d 277
• Parties: Sheila BENSON, Respondent, v. Leonard BENSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 277

434 N.Y.S.2d 277

79 A.D.2d 694

Sheila BENSON, Respondent, v. Leonard BENSON, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 29, 1980.

Penn & Scheinfeld, Carle Place (Alan P. Goodman, Carle Place, of counsel), for appellant.

Bell, Wolkowitz, Kalnick, Klee, Green & Beckman, New York City (Barry R. Fertel, New York City, of counsel), for respondent.

Before DAMIANI, J. P., and TITONE, GIBBONS and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the plaintiff wife was previously granted a judgment of divorce, the defendant husband appeals from so much of an order of the Supreme Court, Nassau County, dated May 27, 1980, as, after a hearing, (1) granted plaintiff's motion to modify the judgment of divorce to the extent that defendant was directed to pay additional child support for one of the parties' children in the amounts of $400 per month for psychotherapy, and $8,179 per annum for enrollment of that child at the private Hun School, (2) directed defendant to pay plaintiff the sums of $870 and $1,370 for medical expenses incurred on behalf of the parties' children and (3) denied defendant's cross motion to modify the judgment of divorce so as to reduce the amount of child support payable thereunder by that portion reflecting support of the parties' son who has allegedly become emancipated.

Order reversed insofar as appealed from, on the law, without costs or disbursements, the cross motion is granted, insofar as plaintiff seeks to recover for past medical expenses incurred on behalf of the children, the plaintiff's motion is denied, and the matter is otherwise remitted to Special Term for further proceedings in accordance herewith.

Insofar as Special Term determined that defendant may be required to assume the financial responsibility of furnishing for the parties' younger son an education at a specialized private school, we agree. It is the settled rule that in the absence of a voluntary assumption of such responsibility, a father is not obliged to provide a private school education for his child unless there exist "special circumstances" (Di Martino v. Di Martino, 71 A.D.2d 601, 418 N.Y.S.2d 116; Baiamonte v. Baiamonte, 67 A.D.2d 992, 413 N.Y.S.2d 723; Wagner v. Wagner, 51 Misc.2d 574, 273 N.Y.S.2d 572, affd. 28 A.D.2d 828, 282 N.Y.S.2d 639, mot. for lv. to app. dsmd. 20 N.Y.2d 803, 284 N.Y.S.2d 460, 231 N.E.2d 135). Here there is ample evidence to support the conclusion that enrollment of the child in a specialized private school is medically necessary. Among other psychological problems, he suffers from dyslexia and minimal brain dysfunction; he was also diagnosed, at an early age, as being hyperkinetic. Though the public school system may provide some of the specialized attention which the child needs, his best interests would be served by his attendance at a private school.

Defendant should not be held responsible for past medical expenses incurred by plaintiff on behalf of the parties' infant children. This result obtains where, as here, the divorce...