| Bink v Bink |
| 2008 NY Slip Op 07287 [55 AD3d 1244] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Susan C. Bink, Respondent, v Patrick B. Bink, Appellant. (AppealNo. 2.) |
—[*1] Maureen A. Pineau, Rochester, for plaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Ann Marie Taddeo, J.),entered January 31, 2007 in a divorce action. The judgment, among other things, ordereddefendant to pay child support.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby granting defendant a credit against his child support arrears for his voluntary payment of childsupport during the pendency of this action, providing that defendant's severance payments aredefendant's separate property and vacating the direction that defendant pay his pro rata share ofthe college expenses of the parties' middle child after she attained the age of 21 and as modifiedthe judgment is affirmed without costs, and the matter is remitted to Supreme Court, MonroeCounty, for further proceedings in accordance with the following memorandum: Defendantappeals from a judgment in this divorce action that, inter alia, distributed the parties' maritalproperty and ordered defendant to pay child support for the parties' remaining unemancipatedchild as well as his pro rata share of the college expenses of the parties' middle child until shecompletes college or attains the age of 25. We agree with defendant that Supreme Court erred indetermining that he was not entitled to a credit against his child support arrears for his voluntarypayment of child support during the pendency of this action. "[V]oluntary payments are preferredwhile [an action] is pending" (Shanon v Patterson, 294 AD2d 485, 485 [2002]), and thepaying spouse "is entitled to a credit for 'any amount of [child support that] has been paid' "(Burns v Burns, 84 NY2d 369, 377 [1994]; see Lester v Lester, 237 AD2d 872,873 [1997]; DiSanto v DiSanto, 198 AD2d 838 [1993]). We therefore modify thejudgment accordingly, and we remit the matter to Supreme Court to determine the amount of thatcredit.
We further agree with defendant that the court erred in determining that his severancepayments are marital property. Inasmuch as defendant's right to receive those payments did notexist either during the marriage or prior to the commencement of this action, nor did theseverance payments constitute compensation for past services, the severance payments aredefendant's separate property (see Biddlecom v Biddlecom, 113 AD2d 66, 69 [1985];cf. Nielsen v Nielsen, 256 AD2d 1173 [1998]; see generally Olivo v Olivo, 82NY2d 202, 207-208 [1993]). We therefore [*2]further modify thejudgment accordingly. Because the court ordered that the amount "due defendant as the netequity in the marital home shall be credited towards" the award of plaintiff's share of severancepayments, we direct Supreme Court upon remittal to determine the amount of any severancepayments made and, in view of those payments, the amount plaintiff now shall pay to defendant.
Finally, as plaintiff correctly concedes, the court erred in directing defendant to pay his prorata share of the college expenses of the parties' middle child inasmuch as she has attained theage of 21 (see Schonour v Johnson,27 AD3d 1059, 1060 [2006]). We therefore further modify the judgment accordingly.Present—Scudder, P.J., Lunn, Fahey, Pine and Gorski, JJ.