IN RE: Abraham STERN

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

IN RE: Abraham STERN, appellant, v. Rebecca STERN, respondent.

Decided: May 29, 2007

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, PETER B. SKELOS, and WILLIAM E. McCARTHY, JJ. Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y. (Mark M. Holtzer and Virginia K. Trunkes of counsel), for appellant. Steven M. Bernstein, Brooklyn, N.Y., for respondent.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (Pearl, J.), dated June 15, 2006, as granted the mother's objections to an order of the same court (Baur, S.M.), dated March 22, 2006, as amended, which granted his petition for a downward modification of a prior order of child support and directed him to pay child support in the sum of $1,354.16 per month.

ORDERED that the order dated June 15, 2006, is reversed insofar as appealed from, on the law, without costs or disbursements, the mother's objections are denied, and the Support Magistrate's order, as amended, is reinstated.

The father commenced a proceeding to modify a prior order of child support based on the emancipation of one child who turned 21 and the father's assumption of custody of the parties' two other children.   The parties' separation agreement requires the father to pay child support to the mother until each child reaches emancipation and defines an emancipation event, inter alia, as “attaining the age of twenty-one” and “permanent residence of a child away from the residence of the Mother.”   It is undisputed that one child has reached the age of 21 and two of the children permanently reside with the father.   Consequently, the father is not required to pay support for these children.   Since there is no triable issue of fact as to the father's petition, no hearing is required (see Wyser-Pratte v. Wyser-Pratte, 66 N.Y.2d 715, 496 N.Y.S.2d 991, 487 N.E.2d 901;  cf. Schnoor v. Schnoor, 189 A.D.2d 809, 592 N.Y.S.2d 460;  Grimaldi v. Grimaldi, 167 A.D.2d 443, 562 N.Y.S.2d 126), and the Support Magistrate properly granted the father's petition for a downward modification (see Rocchio v. Rocchio, 213 A.D.2d 535, 537, 623 N.Y.S.2d 917;  see also People ex rel. Breitstein v. Aaronson, 285 A.D.2d 566, 567, 727 N.Y.S.2d 477;  Matter of Goldberg v. Benner, 247 A.D.2d 385, 386, 668 N.Y.S.2d 659;  Matter of Christodoulou v. Christodoulou, 212 A.D.2d 607, 622 N.Y.S.2d 545).   The amount to be paid by the father to the mother for the support of the remaining child is subject to a final determination upon completion of a hearing to adjudicate the mother's pending petition for an upward modification due to changed circumstances based on the needs of that child.

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