Opinion
November 13, 1980
Appeal from the Onondaga County Family Court.
Present — Dillon, P.J., Schnepp, Callahan, Doerr and Witmer, JJ.
Order unanimously affirmed, without costs, and matter remitted to Onondaga County Family Court for further proceedings in accordance with the following memorandum: Petitioner appeals from an order of Family Court which dismissed three petitions seeking modification of support payments for her out-of-wedlock child. The amount of support was fixed by this court in 1965 (Matter of Nardone v Coyne, 23 A.D.2d 819, affd 18 N.Y.2d 626). On June 17, 1974, Family Court modified our order and directed respondent to pay $125 per week for the child's support, plus orthodontic expenses. The order appealed from is dated September 23, 1976. We are thus limited in our review to the question of whether petitioner demonstrated such a change in circumstances between June 17, 1974 and the date of the order appealed from as would justify an upward modification of support. It does not appear that there was any material change in the ability of respondent to support the child. The record demonstrates that he has long been a man of substantial financial means. It is also clear that the only changes in the needs of the child from 1974 to the date of the hearing were those resulting from inflation, from his maturing, and from his transfer from public school to private school. The mere fact that a child has grown two years older and prices have become inflated will not, standing alone, serve as a basis for increased support (Riposo v Riposo, 60 A.D.2d 790; cf. Klubek v Schad, 49 A.D.2d 669). Nor may the cost of the child's private education be charged to respondent where, as here, it is demonstrated that the child was able to function in the public school system (Wagner v Wagner, 51 Misc.2d 574, 576, affd 28 A.D.2d 828, mot for lv to app dsmd 20 N.Y.2d 803; Brotherton v Brotherton, 73 A.D.2d 1062; Matter of Monesi v Monesi, 55 A.D.2d 1020). Thus, petitioner failed to demonstrate a basis for upward modification of support. In denying her petitions, Family Court found, albeit erroneously, that respondent was obligated to pay the cost of the child's private education. The court further found, however, that the amount of $125 per week was adequate to cover that cost. Petitioner might reasonably have believed, therefore, that there was merit to this appeal. In such circumstances, the matter should be remitted to Family Court to determine the amount, if any, that should be awarded to petitioner for counsel fees upon the appeal (Family Ct Act, § 536; see Matter of Giacoman v Boer, 23 A.D.2d 737). In remitting the matter, we also note that Family Court should rule upon petitioner's pro se application for reimbursement of expenses incurred in the proceeding at Family Court.