Opinion
October 26, 1995
Appeal from the Family Court, New York County (Leah Marks, J.).
Respondent's arguments that Family Court lacked personal jurisdiction over him because neither party is a New York State resident and respondent was never served with a petition were properly rejected. This action was initiated by respondent in the New York County Supreme Court in which petitioner's properly pleaded counterclaim for additional child support was properly transferred to the Family Court ( see, Avildsen v. Prystay, 204 A.D.2d 154).
In determining that $1,750 per month constitutes an appropriate award for the support of the out-of-wedlock child, the Hearing Examiner properly applied the formula set forth in the Child Support Standards Act (Family Ct Act § 413) and properly took into consideration the factors set forth in subdivision (1) (f) thereof in awarding support in excess of the amount attributable to the first $80,000 of combined parental income ( see, Matter of Cassano v. Cassano, 85 N.Y.2d 649; Matter of Donna R. v. Robert P., 209 A.D.2d 623). However, the Hearing Examiner abused his discretion under Family Court Act § 413 (1) (c) (7) in ordering respondent to pay the tuition and costs of the child's private school education upon the ground that this would enable the child to distance himself from this "never-ending litigation" ( Matter of Cassano v. Cassano, 203 A.D.2d 563, affd 85 N.Y.2d 649, supra). This simply does not constitute the type of evidence that would justify the award and the record is devoid of any pertinent evidence as to the child's educational aptitude and needs which might support the award. Similarly, it was improper at this juncture for the Hearing Examiner to order respondent to set up a college fund for the child.
We have considered respondent's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Nardelli, JJ.