Support under Article 4 of Family Court Act, Matter of

• Decision Date: 31 October 1975
• Citation: Support under Article 4 of Family Court Act, Matter of, 374 N.Y.S.2d 193, 49 A.D.2d 263 (N.Y. App. Div. 1975)
• Parties: . F.L.C., Respondent, v. E.W.P., Appellant. Supreme Court, Appellate Division, Fourth Department
• Writing for the Court: Before MOULE; WITMER; Order unanimously modified in accordance with Opinion by WITMER; MOULE
• Court: New York Supreme Court — Appellate Division

Page 193

374 N.Y.S.2d 193

49 A.D.2d 263

In the Matter of SUPPORT UNDER ARTICLE 4 OF the FAMILY COURT ACT F.L.C., Respondent, v. E.W.P., Appellant.

Supreme Court, Appellate Division, Fourth Department.

Oct. 31, 1975.

Houghton & Pappas, Rochester, for appellant (Thomas E. Lenweaver, Rochester, of counsel).

Burger, Pogal, Nessler, Sklover & Schulman, Rochester, for respondent (Edwin R. Schulman, Rochester, of counsel).

Before MOULE, J.P., and SIMONS, MAHONEY, GOLDMAN and WITMER, JJ.

OPINION

WITMER, Justice.

This is an appeal by respondent from a Family Court order entered on August 21, 1974(1) modifying an order of that court dated April 3, 1970 by increasing the support provisions for the son of the parties from $40 to $75 per wee (2) directing respondent to reimburse petitioner in the sum of $8200 for her expenses in supporting said child, B, from the time of his birth until April 3, 1970, and (3) directing that when B, born in 1959, is ready to go to college and qualifies for and wishes to go to college, respondent pay his tuition and room and board thereat in an amount not to exceed the sum of $3500 per year until B is graduated or attains 21 years of age. The petition in support of this order did not contain a request that respondent pay for B's college education.

Petitioner was married and living with her husband and two daughters at the time of B's birth in 1959; and respondent-appellant was then married and living with his wife and four sons. At all times appellant admitted paternity of B, and he paid petitioner's hospital expenses at the time of the birth. Petitioner took employment, and she was then often out of town for extended periods. This necessitated that she arrange to have B cared for, and she placed him in the weekly care of one S. Appellant did not contribute to B's regular support until he became 10 years old, but on three occasions at petitioner's request he paid amounts to S totaling $800 for B's care. Beginning in 1967 appellant also paid B's summer camping expenses annually through 1973. Appellant testified that petitioner did not ask him to contribute anything more to B prior to September, 1969, and that he always paid whatever she asked him to pay for B. Petitioner contradicts this, testifying that she often asked appellant to pay for B's regular support but he refused. She testified, nevertheless, that appellant lent her money from time to time and that she always repaid such loans.

In September, 1969 appellant and petitioner agreed that he would henceforth contribute $40 weekly to B's support, and he has paid such sum regularly ever since. For some reason which does not appear in the record, in February, 1970 petitioner petitioned Family Court for an order based upon a stipulation between her and appellant in which he admitted paternity of B and agreed (1) to continue to pay $40 weekly for his support, (2) to pay for Blue Cross and Blue Shield insurance for him, and (3) to pay petitioner's counsel in that proceeding a fee of $150. An order to such effect was entered on April 3, 1970, and appellant has fully complied therewith.

Petitioner worked full time from shortly after B's birth until 1970, receiving a good income, but she has only worked part of the time since then. During this period respondent was employed as an officer of a prosperous company and received compensation based in large part on commissions, so that it varied from year to year. He had a heart attack in 1966 but made a good recovery. Many months before this proceeding was begun respondent notified his company that he intended to retire in one year, to wit, on July 1, 1974. He did this for reasons of health and to pursue a writing career. On July 1, 1974, one month before the hearing in Family Court in this proceeding, he did retire, at the age of 57 years. At that time two of his sons had been graduated from college and the other two had attended college but quit of their own volition; and all were self supporting. On his retirement respondent became entitled to over $70,000 from the sale of stock in his company, to be paid to him over a three-year period, and he had pension rights of $594.64 per month. He also had some debts. Respondent's adjusted gross income in 1969 was about $26,000. In 1970 it was about $23,000; and in 1973 it was $32,750.

In this proceeding petitioner sought an increase in the monthly support for B based upon her alleged increased costs of supporting him and on respondent's increased income and assets. There is no doubt as to the right of the court to modify a support order with respect to provisions for the future support of a child (Family Court Act, §§ 451 and 548; Matter of Nardone v. Coyne, 23 A.D.2d 819, 258 N.Y.S.2d 511, affd. 18 N.Y.2d 626, 272 N.Y.S.2d 775, 219 N.E.2d 290; Matter of Van Order v. Hawley, 34 A.D.2d 591, 308 N.Y.S.2d 112). The amount to be fixed depends upon the reasonable needs of the child and the ability of the parent. Some items listed by petitioner as needed for B appear to be unnecessary or overstated. Although respondent's family expenses are much less now than in 1970, his income is also substantially less. We conclude that the increase of the weekly payments directed by Family Court from $40 to $75 to be made by respondent was excessive, that an increase to the sum of $55 is reasonable (see Nardone and Van Order, supra), and that the order should be modified accordingly.

The provision in the order directing respondent to pay petitioner the sum of $8200 in reimbursement for her expenses of support of B from the date of his birth until September, 1969 must be deleted. Respondent testified that he paid to petitioner and for B everything that petitioner requested him to pay. During much of this time petitioner was also living with her husband and two daughters. Petitioner testified that she borrowed money from time to time from respondent and repaid him. The record, therefore, will not support a finding that petitioner considered that respondent was indebted to her for such support or expected that he would pay it or reimburse her for it; and in such circumstances petitioner is not entitled to be paid therefor (Swanton v. Curley, 273 N.Y. 325, 329, 7 N.E.2d 250, 252). Even if petitioner had asked for and expected payment, however, her claim would be limited by the statute of limitations (see Clayburgh v. Clayburgh, 261 N.Y. 464, 469, 185 N.E. 701, 703). Beyond that, however, petitioner is bound by the order of April 3, 1970 which declared respondent's paternity of B and fixed his obligations for support, subject, of course, to be modified with respect to future needs. Any other claim which could then have been litigated should have been determined therein, and, failing that, was concluded by that order (see Turner v. Woolworth, 221 N.Y. 425, 117 N.E. 814; McManus v. McManus, 39 A.D.2d 775, 332 N.Y.S.2d 815; Rexer v. Rexer, 18 A.D.2d 935, 238 N.Y.S.2d 413(9); Karminski v. Karminski, 260 App.Div. 491, 23 N.Y.S.2d 141; and see Horne v. Horne, 22 N.Y.2d 219, 222, 292 N.Y.S.2d 411, 413, 239 N.E.2d 348, 349; Dravecka v. Richard, 267 N.Y. 180, 182--183, 196 N.E. 17, 18).

In Karminski (supra), 260 App.Div., at pages 492--493, 23 N.Y.S.2d, at page 142, the court said:

'The questions presented are whether the liability of the husband for the support of the child is limited by the decree previously made, and whether the court may retroactively effect an increase in the husband's liability, even though the amount involved relates to necessary expenses of an extraordinary or unforeseen nature.

'No question is presented concerning the power of the court to modify its decree to increase or otherwise alter the husband's future obligations.

'We think the order appealed from is erroneous.

'The rule is stated in Turner v. Woolworth, 221 N.Y. 425, 117 N.E. 814, 815: 'The rule is that alimony, when allotted, measures the husband's duty of support. * * * Any other conclusion might lead in practice to gross abuses. There would be little end to litigation if such orders settled...