Opinion
April 6, 1992
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the appeal from so much of the order entered March 12, 1990, as directed a hearing on certain branches of the plaintiff's motion and on that branch of the defendant's cross motion which was for downward modification of the child support provisions of the judgment of divorce between the parties, is dismissed, on the ground that an order directing a judicial hearing to aid in the disposition of a motion is not appealable as of right (see, CPLR 5701 [a] [2]; Moheban v Moheban, 149 A.D.2d 488; Serafimovs v Serafimovs, 134 A.D.2d 422; Palma v Palma, 101 A.D.2d 812); and it is further,
Ordered that the order entered March 12, 1990, is affirmed insofar as reviewed; and it is further,
Ordered that the order entered June 22, 1990, is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
On June 24, 1981, the parties to this action entered into a stipulation whereby the defendant father agreed to pay child support of $200 per month for each of his children, with child support for each child to continue until the child reached the age of 21 years or was sooner emancipated. The stipulation made no provision for any future private school or college expenses of the children. The parties were divorced by a judgment of the Supreme Court dated July 20, 1981, and the stipulation was incorporated but not merged in the judgment.
In 1987 the parties' son was enrolled in a private boarding school for his final two years of high school. He then entered college. The defendant paid for tuition, room, and board for the son's schooling. He also continued to pay all costs of the son's medical insurance and unreimbursed medical and dental expenses and some costs of his clothing, and he provided the son with an allowance. The plaintiff paid, inter alia, certain clothing and food costs for the son when he returned home for weekends, holidays, and vacations.
In November 1989 the plaintiff moved for an upward modification of child support. In her supporting papers on the motion, the plaintiff cited the son's increased needs, the increased costs of living, and the loss of her employment.
In order to satisfy her burden on the motion, the plaintiff was required to demonstrate an unanticipated and unreasonable change in circumstances, or that the agreement entered into by the parties was unfair when entered into (see, Matter of Boden v Boden, 42 N.Y.2d 210), or that the child was not being adequately supported (see, Matter of Brescia v Fitts, 56 N.Y.2d 132). We find that the plaintiff has failed to meet her burden under the facts of this case.
The increased educational needs of the child of well-educated parents, e.g., private school and college, cannot be said to be unanticipated and unreasonable (see, Matter of Bernstein v Goldman, 180 A.D.2d 735; May May Cheng v McManus, 178 A.D.2d 906; Matter of Tribley v Tribley, 178 A.D.2d 819). Moreover, although evidence was introduced that the defendant's salary had increased since 1981, the courts generally do not modify an agreement with respect to child support based merely upon a parent's increased income and/or the increased needs of a growing child (see, Matter of Bernstein v Goldman, supra; May May Cheng v McManus, supra). Further, in view of the defendant's payments for the son's tuition and room and board, it cannot be said that the child is not being adequately supported (see, Matter of Brescia v Fitts, supra). Indeed, the plaintiff actually experienced a decrease in her costs for the parties' son during the time period in question, as he was residing away from home.
The court properly granted the defendant's motion for a protective order as to financial disclosure. The parties' dispute is over child support for the time period from 1987 onward. The order entered June 22, 1990, provides the plaintiff with sufficient information with respect to the defendant's financial circumstances during that period. Bracken, J.P., Eiber, O'Brien and Pizzuto, JJ., concur.