Opinion
June 17, 1996
Appeal from the Supreme Court, Kings County (Hurowitz, J., Patterson, J.).
Ordered that the appeal from the judgment is dismissed, as that portion of the judgment which reserved the issue of child support for future determination was superseded by the order; and it is further,
Ordered that the order is reversed insofar as appealed from, and the matter is remitted to the Supreme Court, Kings County, for a determination of the appropriate amount of the defendant's child support obligation for Sept and Brandon from June 8, 1993, through March 12, 1995, and for Anitra from June 8, 1993 through April 30, 1995; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
By statute, an award of child support is "effective as of the date of the application therefor" (Domestic Relations Law § 236 [B] [7] [a]; § 240 [1]), which, prior to July 1, 1992, was the date of the service of the summons with notice containing the request for child support (see, Bonheur v. Bonheur, 141 A.D.2d 489). Domestic Relations Law § 211 was amended to provide that matrimonial actions shall be commenced by the filing of the summons with notice (L 1992, ch 216, § 21). Thus, since the application for child support in the instant action was made at the commencement of the divorce action, upon the filing of the summons with notice pursuant to Domestic Relations Law § 211 on June 8, 1993, the permanent award of child support should be retroactive to June 8, 1993 (see, Zurner v. Zurner, 221 A.D.2d 748; Miller v. Miller, 201 A.D.2d 542, 543; see also, Burns v Burns, 84 N.Y.2d 369, 377).
The record is insufficient for this Court to make an accurate determination of child support arrears. Hence, the matter is remitted to the Supreme Court to determine the appropriate amount of the support obligation retroactive to the commencement of the divorce action, based upon the appropriate number of calendar weeks involved, the number of minor children who should have received support during the period of arrears, the bi-weekly child support awarded after March 13, 1995, and the appropriate credits to which the defendant is entitled against the retroactive amounts due. Miller, J.P., Copertino, Santucci and Altman, JJ., concur.