Sicurelli v. Sicurelli

• Decision Date: 16 July 2001
• Citation: 727 N.Y.S.2d 479
• Parties: (A.D. 2 Dept. 2001) Lisa Sicurelli, respondent, v. Robert Sicurelli, Jr., appellant. 2000-03959 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 479

727 N.Y.S.2d 479 (A.D. 2 Dept. 2001)

Lisa Sicurelli, respondent, v. Robert Sicurelli, Jr., appellant.

2000-03959

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

July 16, 2001

Stephen Gassman, Garden City, N.Y. (Charlotte Betts of counsel), for appellant.

Michael N. Klar, Garden City, N.Y., for respondent.

DAVID S. RITTER, J.P., SONDRA MILLER, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Skelos, J.), entered February 8, 2000, as awarded the plaintiff temporary child support in the sum of $500 per week, and directed him to pay all unreimbursed non-elective medical, psychiatric, and dental expenses of the plaintiff and the parties' children, certain carrying charges on the marital residence, and the amount of a judgment entered against the parties in connection with the repossession of their automobile.

ORDERED that the order is modified by (1) deleting the provision thereof awarding the plaintiff temporary child support in the sum of $500 per week and substituting therefor a provision awarding her temporary child support in the sum of $240 per week, and (2) deleting the provision thereof directing the defendant to pay all unreimbursed non-elective medical, psychiatric, and dental expenses of the plaintiff and the parties' children and substituting therefor a provision directing him to pay 53.5% of those expenses of the parties' children only and the plaintiff to pay 46.5% of those expenses of the children and 100% of those expenses for herself; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in awarding the plaintiff both temporary child support in the sum of $500 per week and directing the defendant to pay the mortgage payments, insurance, real estate taxes, and electricity and telephone bills for the marital residence. Shelter costs attributable to the children are inherent in the basic child support obligation (see, Chasin v Chasin, 182 A.D.2d 862; Ryan v Ryan, 186 A.D.2d 245; James v James, 169 A.D.2d 441; Lenigan v Lenigan, 159 A.D.2d 108). By awarding temporary child support in the sum of $500 per week and placing the responsibility for the payment of the majority of the carrying charges for the marital residence on the defendant, the Supreme Court improperly awarded a double shelter allowance (see, Ryder v Ryder, 267 A.D.2d 447; Young v Young, 245 A.D.2d 560; Frankenbach v Frankenbach, 244 A.D.2d 524; Krantz v Krantz, 175 A.D.2d 863). "The usual method of remedying an improper double award for shelter is to deduct the amount awarded for carrying charges from the payor spouse's income before determining the appropriate amount for child support. The amount of child support is then...