Opinion
CA 04-01635.
March 18, 2005.
Appeal from an order of the Supreme Court, Monroe County (Alex R. Renzi, A.J.), entered May 5, 2004. The order, insofar as appealed from, directed that child support arrears in the amount of $25,040 be placed in a joint "529 account" with plaintiff and defendant as owners of the account and the parties' child as beneficiary and denied defendant's request for attorney's fees.
Before: Hurlbutt, J.P., Smith, Pine, Lawton and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the third, fourth and fifth sentences of the first ordering paragraph and by vacating the second ordering paragraph and as modified the order is affirmed without costs.
Memorandum: Defendant mother moved by postjudgment order to show cause for, inter alia, child support arrears. We agree with defendant that Supreme Court erred in ordering that the child support arrears awarded to defendant be placed in a "529 account" for the child's college expenses and paid over to the child if not used for such expenses. The child support arrears were owed to defendant under the terms of the parties' separation agreement, which was incorporated but not merged in the judgment of divorce. "The retroactive sum should be paid to the parent who has expended funds to support the child and not to the child" ( Guneratne v. Guneratne, 214 AD2d 871, 873; see generally Garguiolo v. Topp, 184 AD2d 1027, 1028; Francais v. Francais, 50 AD2d 702). We therefore modify the order accordingly.
We have considered defendant's remaining contentions and conclude that they are without merit.