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Fanny Reinisch, Respondent,
v.
Morris Reinisch, Appellant.


SUPREME COURT OF NEW YORK
APPELLATE DIVISION, SECOND DEPARTMENT


February 29, 1996, Submitted

April 22, 1996, Decided


Reinisch v. Reinisch

226 A.D.2d 615; 641 N.Y.S.2d 393


JUDGES:


Thompson, J. P., Sullivan, Pizzuto and McGinity, JJ., concur.


OPINION:


 Ordered that the judgment is modified by (1) deleting the eighth and ninth decretal paragraphs thereof, and (2) by adding the following decretal paragraph: "ordered and adjudged that during any period in which the husband is paying $ 2,250 per month in child support and one child is living away from home while attending college, up to one-half of his child support obligation during that period shall be credited toward his contribution to the costs of that child's education; that during any period in which the husband's child support obligation is $ 2,250 per month and both children are 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 the childrens' education; and during any period in which the husband's child support obligation is $ 1,550 per month and the remaining unemancipated 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, without costs or disbursements.


The Supreme Court directed the husband to pay to the wife's mother, Pola Ader, and the wife's stepfather, Oscar Elbaum, $ 6,000 each for loans made to the wife during the pendency of this action. However, before a court can grant affirmative relief to a third party, that party must submit himself or herself to the jurisdiction of the court (see, Kirk v Kirk, 177 AD2d 619; Adams v Adams, 129 AD2d 661). Since neither Pola Ader nor Oscar Elbaum were parties to this action and neither moved to intervene, the Supreme Court did not have the power to grant affirmative relief in their favor.


Taking into consideration all of the relevant factors, including the standard of living enjoyed by the parties during the marriage, as the Supreme Court apparently did, the award of maintenance in the amount of $ 2,000 per month for a 10-year period was not an improvident exercise of discretion (see, Domestic Relations Law 236 [B] [6]; Summer v Summer, 85 NY2d 1014; Hartog v Hartog, 85 NY2d 36, 52; O'Keefe v O'Keefe, 216 AD2d 549). Furthermore, we do not find any error in the provision of the judgment which directed the husband to pay a pro rata share of the children's college expenses (see, Domestic Relations Law 240 [1-b] [c] [7]; Matter of Cassano v Cassano, 203 AD2d 563, affd 85 NY2d 649; Landau v Landau, 214 AD2d 541). However, it was improper to direct the husband to pay child support and contribute to the expenses of the children's college education without including any provision reducing the level of support or crediting the husband for the amounts contributed to the costs of their college education during periods when the children live away from home while attending college and, therefore, the judgment has been modified accordingly (see, Guiry v Guiry, 159 AD2d 556, 557).


We have reviewed the husband's remaining contentions and find them to be without merit.


Thompson, J. P., Sullivan, Pizzuto and McGinity, JJ., concur.






The case of Reinisch v. Reinisch is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Reinisch 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. Reinisch v. Reinisch 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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