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Chan v. Chan

Appellate Division of the Supreme Court of New York, Second Department
Dec 27, 1999
701 N.Y.S.2d 114 (N.Y. App. Div. 1999)

Opinion

Argued November 24, 1999

December 27, 1999

In a matrimonial action in which the parties were divorced by judgment dated October 9, 1998, the defendant former husband appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Queens County (Geller, J.), entered March 9, 1999, which, after a hearing, inter alia, directed him to pay the plaintiff former wife (1) the sum of $225 per week for the support of the parties' two children, (2) 50% of the children's parochial school tuition expenses, and (3) 25% of the increase in the value of the marital premises.

Larry S. Bachner, Kew Gardens, N.Y., for appellant.

Deborah G. Fiss, Jackson Heights, N.Y., for respondent.

FRED T. SANTUCCI, J.P., DANIEL W. JOY, ANITA R. FLORIO, DANIEL F. LUCIANO, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly exercised its discretion in awarding the sum of $225 per week as child support (see, Domestic Relations Law § 240; Family Ct Act § 413; Bast v. Rossoff, 91 N.Y.2d 723 ), and requiring the defendant to pay one-half of the parochial school expenses for the parties' two children. Pursuant to Domestic Relations Law § 240 Dom. Rel.(1-b)(c)(7), the court may direct a parent to contribute to a child's education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court's discretion is not improvidently exercised in that regard (see, Matter of Cassano v. Cassano, 203 A.D.2d 563 ; Cohen v. Cohen, 203 A.D.2d 411 ; Manno v. Manno, 196 A.D.2d 488 ). "In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice" (Manno v. Manno, supra, at 491).

Here, the Supreme Court considered each of these factors in directing the defendant husband to contribute to the parochial school expenses. Under these circumstances, the court's determination was a provident exercise of discretion (see, Cohen v. Cohen, supra).

In addition, the court did not err in failing to credit the defendant for payments made to the plaintiff prior to the issuance of a pendente lite order, inasmuch as the payments were voluntarily made, and were not made pursuant to the court's direction (see, Krantz v. Krantz, 175 A.D.2d 865 ; cf., Kessinger v. Kessinger, 202 A.D.2d 752 ; Bara v. Bara, 130 A.D.2d 613 ).

The trial court properly awarded the plaintiff 25% of the appreciation in the value of the marital residence. While a spouse may be entitled to a share of the appreciation in the value of a marital residence (see, Domestic Relations Law § 236[B][1][d][3]), he or she must "demonstrate the manner in which his contributions resulted in the increase in value and the amount of the increase which was attributable to his efforts" (Elmaleh v. Elmaleh, 184 A.D.2d 544, 545 ; see, Fitzgibbon v. Fitzgibbon, 161 A.D.2d 619 ). In addition to her contributions as a homemaker and mother, the plaintiff worked outside the home and shared equally in the payment of the mortgage, carrying charges, and various renovations on the residence during the marriage (see, Lagnena v. Lagnena, 215 A.D.2d 445 ).

The defendant's remaining contentions are without merit.

SANTUCCI, J.P., JOY, FLORIO, and LUCIANO, JJ., concur.


Summaries of

Chan v. Chan

Appellate Division of the Supreme Court of New York, Second Department
Dec 27, 1999
701 N.Y.S.2d 114 (N.Y. App. Div. 1999)
Case details for

Chan v. Chan

Case Details

Full title:PATTY M. CHAN, respondent, v. KWAN CHAN, appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 27, 1999

Citations

701 N.Y.S.2d 114 (N.Y. App. Div. 1999)
701 N.Y.S.2d 114

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