Opinion
June 29, 1961
Appeal by defendant from an order of the Supreme Court at Special Term in Albany County which amended a judgment of separation by striking therefrom a provision which limited the payments directed to be made for the support and maintenance of the parties' son to the period prior to his attaining the age of 18 years. The judgment was granted in 1954 by an Official Referee whose decision upon the minutes was: "For the present the father should contribute $25.00 a week towards the support of the child." Plaintiff contends that the provision in the judgment directing such payment "until [said son] reaches the age of eighteen years" was included through error on the part of her then attorneys in preparing the form of judgment submitted and signed. She states that the son became 18 years of age in September, 1960 and is now a college freshman. Defendant states that he "recalls that the said Official Referee directed that the payments * * * cease when the son became eighteen years of age." Special Term denied so much of the application as sought to increase the award to meet costs of the son's college education, citing International Text Book Co. v. Connelly ( 206 N.Y. 188) ; but granted the motion to the extent of deleting the limitation, so as "to correct what was clearly an error due to inadvertence in the preparation of the decree"; the court further holding: "Moreover, the parent's obligation to furnish necessaries for an unemancipated child continues throughout the latter's minority." We perceive no reason to disturb the discretion thus exercised. (Civ. Prac. Act, § 1170; Martin v. Martin, 138 App. Div. 758. Defendant, in addition to contesting the factual finding of mistake, asserts that an amendment of this nature can be predicated only upon proof of altered financial circumstances ( Smith v. Smith, 255 App. Div. 652; 18 Carmody-Wait, New York Practice, § 120, p. 595), which in his case remain unchanged. Of course, this rule, if such it is, does not apply to an amendment to correct a mistake by conforming the judgment to the original decision. Further, it seems to us that the rule contended for is satisfied in this case even if the order appealed from be deemed to have been made without reference to any prior mistake or inadvertence but solely under the general power conferred by section 1170, as it is evident that the purpose of the rule is to maintain the original ratio between the periodic payment decreed and the husband's income for such period. The judgment as amended is not in contravention of that principle which does not, in our view, inhibit the creation of a greater ultimate liability which will not, however, decrease the amount of defendant's weekly income applicable to his own support and use. Order affirmed, with $10 costs. Bergan, P.J., Gibson, Herlihy and Reynolds, JJ., concur.