Opinion
November 9, 1992
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the appeal from the oral decision dated May 30, 1991, is dismissed, without costs or disbursements, as no appeal lies from a decision; and it is further,
Ordered that the appeal from the order dated September 24, 1991, is dismissed, without costs or disbursements; and it is further,
Ordered that the order and judgment is modified, in the exercise of discretion, by reducing the award of counsel fees from $25,000 to $7,500; as so modified, the order and judgment is affirmed, without costs or disbursements.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the order and judgment (see, CPLR 5501 [a] [1]).
Based upon a change in circumstances, the plaintiff sought the upward modification of an award of child support set over four years earlier. Immediately thereafter, the defendant cross-moved for a change in custody. After hearing the witnesses and evaluating the evidence submitted, the trial court denied the defendant's cross motion for a change in custody and determined that a change in circumstances warranting an increase in child support had, indeed, occurred. The court then applied the Child Support Standards Act to arrive at the appropriate amount (see, Domestic Relations Law § 240 [1-b] [1]).
It is beyond cavil that the totality of the circumstances is to be considered in determining whether custody should be changed, with the preeminent concern being the best interests of the child (see, Eschbach v Eschbach, 56 N.Y.2d 167, 171; Friederwitzer v Friederwitzer, 55 N.Y.2d 89). While the expressed preference of a child is a factor to be considered (see, Eschbach v Eschbach, supra), particularly when that expression is freely given (see, Ira K. v Frances K., 115 A.D.2d 699), it is by no means determinative (see, Eschbach v Eschbach, supra; Matter of Robert T.F. v Rosemary F., 148 A.D.2d 449). There is no question that the parties' two minor children expressed a strong preference to reside with their father. However, there existed an equally strong possibility that the defendant was exerting pressure on the children to declare their allegiance to him (see, Matter of Robert T.F. v Rosemary F., supra, at 451; Matter of Nehra v Uhlar, 43 N.Y.2d 242, 249). Because there are no countervailing circumstances that would warrant a change in the custodial arrangement that has existed for the past seven years, we find that the trial court's determination was proper.
The plaintiff met her burden of establishing the change in circumstances warranting an increase in child support (see, Matter of Michaels v Michaels, 56 N.Y.2d 924, 926; Matter of Brescia v Fitts, 56 N.Y.2d 132, 140-141). While a generalized claim that a child's needs have increased as the child has matured or as a result of inflation does not warrant an upward modification of child support (see, Labita v Labita, 147 A.D.2d 535, 536; Deacutis v Cuomo, 79 A.D.2d 595), the record contains sufficient evidence of specific increased expenses relating to the children's involvements in various activities, such as music lessons, Karate lessons, football, Hebrew School, Bar Mitzvah lessons and summer camp. The plaintiff provided the specific dollar amounts of the increases for each item (see, Matter of Brescia v Fitts, supra, at 140; Matter of McFarlane v McFarlane, 180 A.D.2d 1024; Matter of Miller v Davis, 176 A.D.2d 945).
With respect to the plaintiff's application for attorney's fees, we find that the Supreme Court improvidently exercised its discretion by directing the defendant to pay the sum of $25,000 to her. Under the circumstances of this case, including the relatively similar financial circumstances of the parties, the court's finding that the cross motion for a change in custody was retaliatory in nature, and the inability of the defendant to afford the full amount of the fees incurred by the plaintiff, we modify the award by decreasing the same from $25,000 to $7,500.
We have examined the defendant's remaining contentions and find them to be without merit. Lawrence, J.P., Eiber, O'Brien and Copertino, JJ., concur.