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Alvaro M. Justino, Appellant,
v.
Maria Justino, Respondent.


SUPREME COURT OF NEW YORK, APPELLATE DIVISION,

SECOND DEPARTMENT


March 21, 1997, Argued
April 28, 1997, Decided



Justino v. Justino

238 A.D.2d 549; 657 N.Y.S.2d 79


COUNSEL:

Sari M. Friedman, Commack, N.Y. (Curtis R. Exum of counsel), for appellant.


Barton R. Resnicoff, Great Neck, N.Y., for respondent.


JUDGES:


Bracken, J. P., Copertino, Santucci and McGinity, JJ., concur.


OPINION:


Ordered that the judgment is modified, on the law, by deleting the third decretal paragraph and substituting therefor a provision directing the plaintiff husband to pay the defendant wife the sum of $ 440 per week as and for child support of their two unemancipated children, except that during the period when the plaintiff husband is (1) paying child support for both children and the oldest child is living away from home while attending college, up to one-half of his child support obligation shall be credited toward his contributions to the costs of that child's education, (2) paying child support for both children and they are both living away from home while attending college, up to the full amount of his child support obligation shall be credited toward his contributions to the costs of their education, and (3) paying child support for the remaining unemancipated child and that child is living away from home while attending college, up to the full amount of his child support obligation for that period shall be credited toward his contributions to the costs of that child's education; as so modified, the judgment is affirmed insofar as appealed from, with costs to the respondent.


The Supreme Court properly directed the plaintiff husband to pay the defendant wife child support in the sum of $ 440 per week, as stipulated by the parties in open court. Contrary to the husband's contention, the stipulation did not deviate from the Child Support Standards Act formula (see, Domestic Relations Law 240 [1-b]). The husband's contention that the amount and duration of the wife's maintenance award was an improvident exercise of the court's discretion is also meritless (see, Domestic Relations Law 236; Hartog v Hartog, 85 NY2d 36).


Moreover, the direction to the husband to pay a proportionate share of the college expenses of the children was proper (see, Domestic Relations Law 240 [1-b] [c] [7]; Manno v Manno, 196 AD2d 488; Reinish v Reinish, 226 AD2d 615). However, the court erred in directing the husband to pay child support and contribute to those college expenses without including a provision reducing the level of child support or crediting the husband for any amounts he contributes toward college expenses when the children live away from home while attending college (see, Reinish v Reinish, supra; Guiry v Guiry, 159 AD2d 556). Therefore, the judgment has been modified accordingly.


The husband's remaining contentions are without merit.






The case of Justino v. Justino is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Justino may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Justino v. Justino is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com



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