Krantz v. Krantz

• Decision Date: 19 August 1991
• Citation: Krantz v. Krantz, 573 N.Y.S.2d 738, 175 A.D.2d 865 (N.Y. App. Div. 1991)
• Parties: Jonathan KRANTZ, Appellant, v. Abbey KRANTZ, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 738

573 N.Y.S.2d 738

175 A.D.2d 865

Jonathan KRANTZ, Appellant, v.Abbey KRANTZ, Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 19, 1991.

DiMascio, Meisner & Koopersmith, Carle Place (Steven A. Meisner, of counsel), for appellant.

Reisman, Peirez, Reisman & Calica, Garden City(Seymour J. Reisman and Myra P. Lapidus, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County(DiNoto, J.), dated August 3, 1990, as granted the defendant wife's cross motion for leave to enter a money judgment in the sum of $14,801.50 for arrears in pendente lite maintenance and child support payments due pursuant to an order of the same court dated January 22, 1990.

ORDERED that the order is modified, on the law, by reducing the amount awarded to the defendant for arrears from $14,801.50 to $10,258.99, representing arrears for 26 weeks; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate money judgment for arrears in accordance herewith.

Under the facts of this case, the court erred in ordering the husband to pay the wife both child support and the full amount of the carrying charges on the marital residence because this resulted in giving her a double shelter allowance (see, Lenigan v. Lenigan, 159 A.D.2d 108, 112, 558 N.Y.S.2d 727;see also, James v. James, 169 A.D.2d 441, 564 N.Y.S.2d 334).Consequently, in a companion appeal we have recalculated the child support allowance by deducting the carrying charges from the plaintiff's gross income before applying the percentage set forth in Domestic Relations Law § 240(1-b)(b)(3) (see, Krantz v. Krantz, 175 A.D.2d 863, 573 N.Y.S.2d 736[decided herewith].This process yields an annual child support award in the principal sum of $19,217.98 and a weekly award in the principal sum of $369.58 and reduces the plaintiff's arrears in maintenance and child support for the 26-week period in question to the principal sum of $10,258.99.

We find that the plaintiff husband was not entitled to credits against arrears for the voluntary payments he made directly to the wife or to third parties for the wife and the children's benefit (see, Horne v. Horne, 22 N.Y.2d 219, 224, 292 N.Y.S.2d 411, 239 N.E.2d 348;Fabrizio v. Fabrizio, 125 A.D.2d 634, 510 N.Y.S.2d 9;Neumark v. Neumark, 120 A.D.2d 502, 503, 501 N.Y.S.2d 704).When the payor spouse has voluntarily made...