Zoro v. Lino
| Decision Date | 14 August 1972 |
| Citation | 336 N.Y.S.2d 866,71 Misc.2d 725 |
| Parties | * Petitioner, v. Thomas LINO, * Respondent. Family Court, City of New York, Queens County |
| Court | New York Family Court |
Dikman & Botter by Michael Dikman, Jamaica, for petitioner.
Addabbo, DeSena & Mauro by Louis F. DeSena, Ozone Park, for respondent.
DECISION and ORDER
Petitioner, the former wife of respondent moves for an upward modification of a temporary order of support for her two children, twins, age 18, made by this Court on consent, and without prejudice to either party. Respondent, correspondingly, moves for a downward modification.
Heretofore, and on June 15, 1959, the parties entered into a separation agreement, which was thereafter and on July 13, 1959 incorporated into a Mexican divorce decree, and was made part thereof, which said agreement was not merged in the foreign decree, but survived same.
Among other provisions no relevant to the issues herein, was a provision that the respondent herein would pay to petitioner herein the total sum of $35.00 per week for the support and maintenance of the twins, Thomas and Alan, until each child reaches the age of 18 years.
Initially, the respondent sought to foreclose any discussion with respect to support of the children contending that since they have now reached the age of 18 years, they are no longer entitled to support under the terms of the separation agreement. The court, however, rejected this contention at the trial and adheres to its position that the obligation of parents to support children continues until they reach their 21st birthday notwithstanding any agreement which the parties may have to the contrary. For a scholarly analysis of this principle of law, see opinion of Judge M. Michael Potoker in Kern v. Kern, 65 Misc.2d 765, 319 N.Y.S.2d 178. (See also Matter of Bachman v. Mejias, 1 N.Y.2d 575, 154 N.Y.S.2d 903, 136 N.E.2d 866; Goldberg v. Goldberg, 57 Misc.2d 224, 291 N.Y.S.2d 482; Kulok v. Kulok, 20 A.D.2d 568, 245 N.Y.S.2d 859, and Moat v. Moat, 27 A.D.2d 895, 277 N.Y.S.2d 921).
Secondly, respondent urges that in any event, petitioner is seeking an increase principally to defray the cost of college tuition and expenses which the children will now incur for the Fall semester of 1972, since they will be attending college in Massachusetts and Maine, respectively, and that respondent is not responsible for the college education of his children as a matter of law. The Court disagreed with this position at the trial and adheres to its original ruling, at this time, that this is an issue of fact, which the Court must decide upon all the facts and circumstances herein. (See Kotkin v. Kerner, 29 A.D.2d 367, 288 N.Y.S.2d 244; Bates v. Bates, 62 Misc.2d 498, 310 N.Y.S.2d 26; Roe v. Doe, 36 A.D.2d 162, 318 N.Y.S.2d 973, aff'd. 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567; Wagner v. Wagner, 51 Misc.2d 574, 273 N.Y.S.2d 572.)
However, the Court concludes for the factual reasons hereinafter set forth that the respondent is not required to pay any additional sums for the support of these tow children.
Petitioner established at the trial that in 1959 when the parties were divorced, the respondent was earning $75.00 per week gross and that at the present time respondent is earning $135.07 net (See respondent's Exhibit C).
Petitioner, therefore argues that she is entitled to an increase for the twins because of an increase in the cost of food, clothing and education, and in particular, the fact that the children will be attending college in September 1972. As a matter of fact, she breaks down the needs of the children to be $222.00 per week (which includes college tuition and expenses although concededly neither child attempted to get into a tuition-free local college, (See Roe v. Doe, Supra; Wagner v. Wagner, supra), plus a share of the mortgage and taxes on the home in which they live with petitioner's new husband.
Respondent, however, testified to average weekly expenditures as follows:
Rent ............................. $ 30.00
Food ............................... 17.50
Gas ................................. 1.75
Electric ............................ 3.75
Telephone ........................... 3.00
Lunch for self ..................... 10.00
Subway carfare ...................... 3.50
Clothes ............................. 4.00
Washing shirts ...................... 1.50
Cleaning suits ...................... 2.50
Entertainment ....................... 2.00
(Cigarettes (1 1/2 packs a day) .... 10.00
Laundermat .......................... 6.00
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Total $ 95.50
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To this must be added some miscellaneous expenses of haircuts, shaving cream and blades, tooth paste and various other sundries, which necessarily result in expenditures by respondent of no less than $100. per week, leaving just $35.00 per week for the twins herein.
The Court further recognizes that respondent has expenses for his wife for food, clothing, personal spending money and personal cleaning of her clothing, which would result in his running into debt, which as a matter of fact he testified to. However, under a most recent ruling of the Appellate Division, 2nd Department on June 6, 1972, this Court is barred from giving any relief to the respondent by way of a reduction in support. See Windwer v. Windwer, 39 A.D.2d 927, 928, 333 N.Y.S.2d 205, 206, where the Court held unanimously as follows:
'A divorced husband's remarriage and a child born of his remarriage are not such circumstances as would warrant a reduction in support provisions, where the husband's income remains unchanged.'
Certainly where as here the husband's income has increased from 1959 to 1972, he is not entitled to a reduction in support despite the financial bind in which he finds himself.
Apparently supporting the Windwer case Supra are numerous cases in various courts, including the Court of Appeals, as follows:
Witkowski v. Witkowski, 271 App.Div. 901, 67 N.Y.S.2d 88, where the Appellate Division, 2nd Department was unanimously affirmed by the Court of Appeals, 297 N.Y. 626, 75 N.E.2d 635, which stated as follows:
'Defendant also stated that his financial obligations had increased as a result of a subsequent marriage contracted, contrary to the decree, in Connecticut. The Appellate Division stated: 'There is no showing of changed circumstances in the financial condition of the parties since the entry of the decree, and reduction of the amount of alimony is, therefore, not justified'.'
See also Balmer v. Balmer, 12 Misc.2d 226, 179 N.Y.S.2d 234 where Official Referee Frank E. Johnson of the Supreme Court, Kings County held at p. 227, 179 N.Y.S.2d at p. 236:
'The living expenses of one who has been divorced and remarried have not been recognized as a The Appellate Division in 7 A.D.2d 741, 180 N.Y.S.2d 1017 affirmed but modified the Supreme Court decision by reducing the increase in alimony and counsel fee, and the Court of Appeals then unanimously affirmed the ...
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