Kaplan v. Wallshein
| Decision Date | 02 May 1977 |
| Citation | 394 N.Y.S.2d 439,57 A.D.2d 828 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Betty KAPLAN, formerly known as Betty Wallshein, Appellant-Respondent, v. Allen WALLSHEIN, Respondent-Appellant. |
Dikman & Botter, Jamaica (Michael Dikman, Jamaica, of counsel), for appellant-respondent.
Burns, Jackson, Miller, Summit & Jacoby, New York City (Lawrence C. Gibbs, New York City, of counsel), for respondent-appellant.
Before HOPKINS, Acting P. J., and MARGETT, DAMIANI and RABIN, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action, in which the plaintiff-appellant-respondent wife moved for an upwa modification of child support and for attorneys' fees, and the defendant-respondent-appellant husband cross-moved for a downward modification of his child support obligation, the parties cross-appeal from an order of the Supreme Court, Queens County, dated October 22, 1976, which, after a hearing, inter alia, directed defendant to pay the college education expenses of the parties' child, made provisions for the payment of child support, and awarded plaintiff a counsel fee of $250.
Order modified, on the law and the facts and in the interest of justice, (1) by deleting from the fourth decretal paragraph thereof (a) the figure $96.32 and substituting therefor the figure $96.23 and (b) the words "52 weeks per year" and substituting therefor provisions that the payment of such sum shall be for one year and that the amount shall be modified upward at such time as the scholarship terminates, (2) by deleting from the seventh decretal paragraph thereof the figures $78.86 and $96.32, and substituting therefor the figures $118.98 and $96.23, respectively, (3) by deleting from the eighth decretal paragraph thereof the figures $150.10 and $175.18, and substituting therefor the figures $150.01 and $215.21, respectively, and (4) by increasing the counsel fee award to $1,500. As so modified, order affirmed, with costs to the plaintiff wife. The defendant husband's time to pay the counsel fee is extended until 60 days after entry of the order to be made hereon.
The plaintiff and defendant were married on October 18, 1958. Cara, a daughter, born June 9, 1959, is the sole issue of that marriage. On June 14, 1960 the plaintiff was granted, inter alia, a separation on the ground of abandonment, custody of Cara, an award of alimony and child support in the amount of $65 per week and a counsel fee of $500. On June 18, 1962 this court modified the judgment to the extent of (1) dismissing the plaintiff's action for a separation, (2) deleting the award of alimony and child support and substituting therefor a provision that defendant pay $40 per week as child support and (3) reducing the counsel fee to $250 (see Wallshein v. Wallshein, 16 A.D.2d 967, 229 N.Y.S.2d 848). Shortly thereafter the plaintiff and Cara became residents of Florida, where the plaintiff procured an ex parte divorce. No support provision was contained therein.
On February 3, 1975 the Supreme Court, Queens County, inter alia, increased the support provision to $125 per week. The plaintiff, by the instant motion, sought a further increment for the inclusion of college expenses. The defendant cross-moved for a reduction of the support award to $50 and he contested any additional award for college expenses.
Absent "special circumstances", or a...
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Black v. Walker
...parents; (2) the child's academic ability; and (3) the father's financial ability to provide the necessary funds" (Kaplan v. Wallshein, 57 A.D.2d 828, 829, 394 N.Y.S.2d 439; see also, Antis v. Antis, 108 A.D.2d 889, 485 N.Y.S.2d 770). Based upon the circumstances of this case we find that t......
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