Opinion
October 20, 1970
Order entered on March 11, 1970 unanimously modified on the law and the facts to substitute for the provisions for the support and maintenance of the wife and two children contained in said order the following: (1) appellant-husband shall pay for the support and maintenance of the wife the sum of $825 per month and shall pay the sum of $415 per month for the support and maintenance of each of the two children; (2) in addition the husband shall pay the expenses of psychiatric treatment of the child Karen in sums not to exceed $2,000 per year net of reimbursement from medical insurance and to pay for the private schooling for Karen in sums not to exceed $2,500 per year; and otherwise the order is affirmed, without costs and without disbursements. The record does not support awards in excess of the amounts directed to be paid hereinabove. Provisions for the payments of indefinite amounts for schooling, camp, etc. for the children have been deleted, since in accordance with the policy enunciated in Schine v. Schine ( 28 A.D.2d 976), Macris v. Macris ( 29 A.D.2d 528) and Sklan v. Sklan ( 29 A.D.2d 526) it is more desirable practice to make an inclusive award of a specified sum rather than to provide for unspecified sums in general categories. Exception is made as to the child Karen by virtue of appellant's express waiver to such awards provided the maximum amounts were limited. We find no basis for disturbing the award of counsel fees. There is no merit to appellant's contentions that the determination in a prior proceeding in September, 1968, was res judicata in the absence of proof of changed circumstances. The short answer to that argument is that the prior proceeding was dismissed "without prejudice". Consequently, on its face, the prior disposition was not on the merits and does not bar the maintenance of another proceeding. (See Buchholz-Hill Transp. Co. v. Baxter, 206 N.Y. 173; Globe Crayon Co. v. Manufacturers Chem. Co., 263 App. Div. 131.)
Concur — Eager, J.P., Capozzoli, Nunez and Steuer, JJ.