Argued October 25, 2002.
May 12, 2003.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Baisley, J.), entered August 21, 2001, which, inter alia, directed him to pay child support in the sum of $328.07 per week, directed him to pay 83.1% of the cost of the children's medical insurance and unreimbursed medical expenses, awarded the plaintiff a share of the appreciated value of the commercial condominium in Manhattan, directed him to pay 83.1% as his pro-rata share of the college and educational expenses of the parties' son, awarded maintenance in the sum of $800 per month, and awarded counsel fees to the plaintiff. Justice Townes has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c]).
Samuelson, Hause Samuelson, Garden City, N.Y. (Richard L. Hause of counsel), for appellant.
Philip J. Castrovinci, Smithtown, N.Y. (Ruth Sovronsky of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
ORDERED that the judgment is modified, on the facts and as an exercise of discretion, by (1) deleting the provision thereof directing that the defendant pay child support in the sum of $328.07 per week and substituting therefor a provision directing him to pay child support in the sum of $281.92 per week, on consent, (2) deleting the provision thereof directing that the defendant pay 83.1% of the cost of the children's medical insurance and unreimbursed medical expenses and substituting therefor a provision directing him to pay 67% of those expenses, on consent, (3) deleting the provision thereof awarding the plaintiff a share of the appreciated value of the commercial condominium in Manhattan, and (4) deleting the provision thereof directing the defendant to pay 83.1% as his pro-rata share of the college and education expenses of the parties' son; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for a determination in accordance herewith as to whether an award of college and educational expenses is appropriate, and the entry of an appropriate amended judgment.
As the plaintiff correctly concedes, the Supreme Court improperly failed to deduct the spousal maintenance payments from the defendant's gross income before computing child support (see Domestic Relations Law § 240[1-b][vii][C]; Frankel v. Frankel, 287 A.D.2d 686). As the plaintiff also correctly concedes, the Supreme Court carried this error forward when it determined the parties' pro-rata shares of the children's medical insurance and unreimbursed medical expenses. In that regard, these obligations should have been determined as set forth in the decretal paragraph.
The law is clear that in determining child support, a court may also order a parent to contribute to the child's educational expenses (see Domestic Relations Law § 240[1-b][c]). However, a court does not have unfettered discretion in making such an award. A court must have regard for the circumstances of the case and the respective parties, as well as the best interests of the child (see Matter of Cassano v. Cassano, 203 A.D.2d 563, affd 85 N.Y.2d 649; Chan v. Chan, 267 A.D.2d 413; Matter of McLoughlin v. McLoughlin, 213 A.D.2d 650). However, where, as here, a court makes no findings — or there are no facts in the record — to support such an order, reversal is proper (see Mrowka v. Mrowka, 260 A.D.2d 613; Matter of Wieser v. Wieser, 253 A.D.2d 467). In that regard, we remit the matter to the Supreme Court for a proper determination as to whether an award of college and educational expenses is appropriate. We note that if the Supreme Court is inclined to make such an award, it must give a credit to the defendant against his child support obligation for the period of time that the parties' son is away at school (see Jablonski v. Jablonski, 275 A.D.2d 692; Sheridan v. Sperber, 269 A.D.2d 439; Justino v. Justino, 238 A.D.2d 549).
The Supreme Court improperly determined that the appreciation in value of the commercial condominium in Manhattan is marital property. The plaintiff failed to prove any specific increase in value and that any increase was due in part to her contributions or efforts (see Kraeger v. Kraeger, 271 A.D.2d 657).
Following the dissolution of this 18-year marriage, the Supreme Court providently awarded $800 per month in maintenance for a period of five years to enable the plaintiff to become self-supporting (see Schenfeld v. Schenfeld, 289 A.D.2d 219; DeNapoli v. DeNapoli, 282 A.D.2d 494; Granade-Bastuck v. Bastuck, 249 A.D.2d 444; Costello v. Costello, 268 A.D.2d 403; Love v. Love, 250 A.D.2d 739). The fact that the Supreme Court failed to set forth the reasons for its award in detail is not fatal, since the reasons for that determination are clear from the face of the record (see Formato v. Formato, 134 A.D.2d 564; Harrilal v. Harrilal, 128 A.D.2d 502; Schor v. Schor, 97 A.D.2d 460).
In light of the defendant's obstructionist litigation tactics and the financial circumstances of the parties, the Supreme Court providently awarded counsel fees to the plaintiff (see Domestic Relations Law § 237; Matter of Israel v. Israel, 273 A.D.2d 385; Walker v. Walker, 255 A.D.2d 375; Pauk v. Pauk, 232 A.D.2d 386; Matter of Getman v. Getman, 156 A.D.2d 686; Brennen v. Brennen, 148 A.D.2d 487; Cotton v. Cotton, 147 A.D.2d 436).
The parties' remaining contentions either are not properly before this court, or are without merit.
SANTUCCI, J.P., FEUERSTEIN, SCHMIDT and TOWNES, JJ., concur.