Wieser v. Wieser

• Decision Date: 10 August 1998
• Citation: 676 N.Y.S.2d 655,253 A.D.2d 467
• Parties: , 1998 N.Y. Slip Op. 7378 In the Matter of George WIESER, Respondent, v. Natalie WIESER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 655

676 N.Y.S.2d 655

253 A.D.2d 467, 1998 N.Y. Slip Op. 7378

In the Matter of George WIESER, Respondent, v. Natalie WIESER, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 10, 1998.

Carrie Sutherland, Huntington, N.Y., for appellant.

Sarisohn, Sarisohn, Carner, LeBow, Braun & Castrovinci, Commack, N.Y. (Philip J. Castrovinci and Marvin Waxner of counsel), for respondent.

ROSENBLATT, J.P., RITTER, COPERTINO and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to Family Court Act article 4 to modify an award of child support, the mother appeals (1), as limited by her brief, from so much of an order of the Family Court, Suffolk County (Crosson, H.E.), dated January 23, 1997, as granted the petition, directed her to pay $200 per week in child support, and directed her to pay one-half of the children's educational expenses, and (2) from an order of the same court (Fierro, J.), dated April 9, 1997, which denied the mother's objections to the order dated January 23, 1997.

ORDERED that the appeal from the order dated January 23, 1997, is dismissed, as that order was superseded by the order dated April 9, 1997; and it is further,

ORDERED that the order dated April 9, 1997, is modified, on the law and the facts, by deleting the provision thereof denying the mother's objection to that portion of the order dated January 23, 1997, which directed her to pay one-half of the children's educational expenses, and substituting therefor a provision sustaining that objection; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In determining whether to award educational expenses, the court must consider the circumstances of the case, including the circumstances of the respective parties, the best interest of the children, and the requirements of justice (see, Manno v. Manno, 196 A.D.2d 488, 600 N.Y.S.2d 968). The father failed to present any evidence to support a finding requiring the mother to pay for the private education of the children. The father does not even allege that the education received by the parties' two sons at their private schools is superior to the education they would receive at a public school. The father also failed to present any evidence to support a finding that the mother must pay for the children's college expenses. In fact, it appears from the record that the mother could not afford to do so.

The mother's remaining contentions are without merit.