Opinion
June 8, 1987
Appeal from the Supreme Court, Westchester County (Beisner, J.).
Ordered that the appeal from so much of the order dated October 22, 1985, as granted those branches of the plaintiff's motion which were for leave to enter a judgment for child support arrears and day camp tuition is dismissed, without costs or disbursements, as that portion of the order was superseded by the judgments, both dated January 8, 1986, with respect to child support arrears and day camp tuition; and it is further,
Ordered that so much of the order dated October 22, 1985, as denied that branch of the defendant's cross motion which was for a downward modification of child support and suspension of maintenance is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing on that branch of the cross motion limited to whether payments due after August 2, 1985, should be reduced or suspended based upon an alleged interference with visitation; and it is further,
Ordered that the appeal from so much of the order dated December 16, 1985, as granted the plaintiff's motion to resettle the parties' judgment of divorce, is dismissed, without costs or disbursements, as that portion of the order was superseded by the order dated January 13, 1986; and it is further,
Ordered that the appeal from so much of the order dated December 16, 1985, as denied the husband's cross motion for reargument is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the judgments dated January 8, 1986, are affirmed, without costs or disbursements; and it is further,
Ordered that the order dated January 13, 1986, is reversed, without costs or disbursements, so much of the order dated December 16, 1985 as granted the plaintiff's motion to resettle the judgment of divorce is vacated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith.
The appeal from so much of the intermediate order dated October 22, 1986, as granted those branches of the plaintiff's motion which were for leave to enter judgments for child support arrears and day camp tuition must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgments thereon (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from those portions of the order are brought up for review and have been considered on the appeals from the judgments (CPLR 5501 [a] [1]).
The husband suspended support payments of $100 a week for one of his sons and did not seek a modification of his support obligations under the divorce judgment until the wife brought a motion for leave to enter a judgment for support arrears in August 1985. In the absence of a showing of good cause for the husband's failure to seek a modification prior to the accrual of the arrears, the court properly granted the wife a judgment for the arrears and other expenses due through August 2, 1985, when her motion was made (see, Morris v Morris, 118 A.D.2d 837; Vigo v Vigo, 97 A.D.2d 463; Domestic Relations Law § 244).
The husband sought a prospective downward modification of his child support obligations because one son attends boarding school with tuition, room and board paid by the county and local school district. The husband has failed to establish that this represents a substantial change in circumstances with a concomitant reduction in his son's needs (see, e.g., Matter of Boden v Boden, 42 N.Y.2d 210). The key consideration must be the best interests of the child. The husband does not dispute that the placement of the child in this school was appropriate. In light of the wife's financial circumstances, we cannot accept the husband's claim that the child's attendance at this school at public expense obviates the wife's need for child support to maintain the home for weekend and holiday visits and to meet the child's other expenses, such as clothing and medical and dental care. Accordingly, the court properly denied the husband a downward modification of child support on that ground.
The husband also sought a downward modification of his child support and a suspension of maintenance obligations due to the wife's alleged interference, commencing in August 1985, with his visitation rights with two of his sons, one of whom was enrolled by the wife in an out-of-State boarding school for the 1985-1986 school year. Since the affidavits are conflicting as to the reasons for one son's refusal to visit with the husband and as to whether it was necessary to send the other son to an out-of-State school, the court should have held a hearing (see, e.g., Vigo v Vigo, supra; Matter of Catherine W. v Robert F., 116 Misc.2d 377). The matter is remitted for a hearing limited solely to the issue of whether the husband is entitled to a modification of his support and maintenance obligations subsequent to August 2, 1985, due to the wife's alleged interference with his visitation rights.
Upon remittitur, the court should also hold a hearing with respect to the modification of the parties' judgment of divorce concerning the children's medical and dental expenses. The parties' conflicting interpretations of their agreement to modify that provision cannot be resolved on this record. Thompson, J.P., Bracken, Lawrence and Spatt, JJ., concur.