RATH v. MELENS (2005)

Petitioner commenced this Family Court Act article 4 proceeding seeking a reduction in his child support obligation with respect to his contribution to the children's college expenses.   Following a hearing, the Support Magistrate, inter alia, granted the petition in part by awarding petitioner a lesser reduction than that sought.   Respondent filed objections to the order of the Support Magistrate, and Family Court sustained respondent's objections, vacated the order of the Support Magistrate and dismissed the petition.   We affirm.

 Petitioner failed to preserve for our review his present contention that the Family Court Judge should have notified the parties that respondent's attorney was the Judge's former law clerk and that the Judge should have recused herself (see Douglas v. Kingston Income Partners ′87, 2 A.D.3d 1079, 1082, 770 N.Y.S.2d 153, lv. denied 2 N.Y.3d 701, 778 N.Y.S.2d 459, 810 N.E.2d 912;  Matter of Nunnery v. Nunnery, 275 A.D.2d 986, 987, 713 N.Y.S.2d 417).   In any event, that contention lacks merit (see N.Y. Ethics Op. 548;  N.Y. Advisory Comm. on Jud. Ethics Op. 88-157 [1988];  Smith v. Pepsico, Inc., 434 F.Supp. 524, 525-526).

 We further conclude that the court properly exercised its discretion in determining that petitioner was not entitled to a reduction in child support with respect to the amount he paid toward the room and board portion of the college expenses (see Burns v. Burns, 233 A.D.2d 852, 853, 649 N.Y.S.2d 602, lv. denied 89 N.Y.2d 810, 656 N.Y.S.2d 738, 678 N.E.2d 1354;  Paro v. Paro, 215 A.D.2d 965, 966, 627 N.Y.S.2d 465;  cf. Matter of Kellogg v. Kellogg, 300 A.D.2d 996, 997, 752 N.Y.S.2d 462).   At the time of entry of the order on appeal, only one of petitioner's two children was enrolled in college, and petitioner received supplemental income from his employer based on that child's enrollment in college.   Petitioner's supplemental income was slightly more than petitioner's pro rata share of the child's expenses for room and board.   Under such circumstances, a reduction in child support was not appropriate.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: