Opinion
February 17, 1976
In a matrimonial action in which the plaintiff wife had previously been granted a judgment of divorce, she appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, entered March 31, 1975, as (1) granted defendant's motion to modify the said judgment to the extent of (a) awarding him custody of the parties' 15-year-old daughter, (b) making visitation provisions and (c) eliminating the provisions for the payment of child support and (2) denied plaintiff's cross motion which, inter alia, sought an increase in child support payments. Order affirmed insofar as appealed from, without costs or disbursements. We note that the order under review did not affect defendant's obligation to continue to make all mortgage and real estate tax payments on the residence of the plaintiff wife (owned by him), together with all payments covering expenditures for the maintenance of utilities in the residence for electricity, fuel oil and water bills, as provided in the separation agreement. Since the weekly cash payments provided for in the separation agreement as alimony to the plaintiff wife and as support for the daughter were separately allocated, we distinguish this case in its factual aspects from Nichols v Nichols ( 306 N.Y. 490) and Olmstead v Olmstead ( 24 A.D.2d 605, affd 18 N.Y.2d 652), wherein the payments were lumped and unallocated. Martuscello, Acting P.J., Cohalan, Margett, Damiani and Rabin, JJ., concur.