Opinion
Submitted May 17, 2001.
June 11, 2001.
In a matrimonial action in which the parties were divorced by judgment dated January 13, 1981, the plaintiff appeals from an order of the Supreme Court, Richmond County (Ponterio, J.), dated February 29, 2000, which, upon the granting of her motion for an upward modification of the defendant's child support obligation, inter alia, (1) directed that the defendant pay only 63.40% of the private school education expenses of the parties' children and that she pay 39.60% of those expenses, (2) directed that the defendant be given a credit against child support arrears for any amounts he paid for the childrens' education in excess of his proportionate share of those expenses, and (3) determined that only $54,049.96 of the defendant's income was subject to the Child Support Standards Act as of December 1990.
Mallow, Konstam Hager, New York, N.Y., for appellant.
Daniel D. Leddy, Jr., Staten Island, N.Y., for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
ORDERED that the order is modified by deleting the fourth and fifth decretal paragraphs thereof, directing the parties to pay their proportionate shares of the children's education expenses, and giving the defendant a credit against child support arrears; as so modified, the order is affirmed, without costs or disbursements.
Since the defendant, by stipulation, voluntarily agreed to be responsible for the children's education expenses and never sought a modification of that provision, the court improvidently exercised its discretion in directing that the plaintiff and the defendant share those expenses (see, Dompkowski v. Dompkowski, 159 A.D.2d 1021). Accordingly, the defendant was not entitled to a credit against child support arrears for the voluntary education payments he made (see, Mayeri v. Mayeri, 220 A.D.2d 647).
The plaintiff's remaining contentions are without merit.