Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

Robert T. PHELAN, Appellant, v. Linda Schween PHELAN, Respondent.

Decided: October 27, 1997

Before COPERTINO, J.P., and SULLIVAN, FRIEDMANN and LUCIANO, JJ. Thomas P. Halley, Poughkeepsie, for appellant. Rizzo & Kelley, Poughkeepsie (James P. Kelley, of counsel), for respondent.

In an action to partition real property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), dated October 21, 1996, as denied his motion to vacate or modify the referee's report.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The referee properly determined that the plaintiff's outstanding child support obligation was $25 per child per week.   A decision of the Family Court, Dutchess County, dated June 10, 1982, made in a prior support and custody proceeding, directed the plaintiff to pay child support in the amount of $25 per child per week.   This decision was binding on all courts of coordinate jurisdiction notwithstanding that it was not embodied in a formal order (see, Forbush v. Forbush, 115 A.D.2d 335, 496 N.Y.S.2d 311;  Spahn v. Griffith, 101 A.D.2d 1011, 476 N.Y.S.2d 676;  Matter of Silverberg v. Dillon, 73 A.D.2d 838, 423 N.Y.S.2d 760).   The decision was binding on the parties (see, Atlas Feather Corp. v. Pine Top Ins. Co., 122 A.D.2d 241, 242, 505 N.Y.S.2d 436) and was not altered by subsequent orders in the support and custody proceeding.

 Since the parties were to share the net rental income from the former marital residence, the defendant was entitled to an allowance for the expenses she paid toward mortgage interest, principal, and taxes (see, Bailey v. Mormino, 6 A.D.2d 993, 175 N.Y.S.2d 993).   In addition, the record does not establish any basis for disturbing the defendant's allowance for repairs (see, Wawrzusin v. Wawrzusin, 212 A.D.2d 779, 623 N.Y.S.2d 255;  Worthing v. Cossar, 93 A.D.2d 515, 462 N.Y.S.2d 920) or for the water bill and water softener (cf., Gordon v. Schroeder, 138 Misc. 688, 248 N.Y.S. 279).

Finally, under the circumstances, the defendant was properly credited for her payment of insurance premiums.


Copied to clipboard