Nowocien v. Nowocien , 167 A.D.2d 968 ( 1990 )

Judgment unanimously modified on the law and as modified affirmed without costs, and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: In this appeal from a judgment of divorce, we have reviewed the issues raised by the parties and we conclude that the findings and conclusions of Supreme Court were proper, with the following exceptions.

In determining the amount of child support, Supreme Court improperly declined to deduct from plaintiff’s income "child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action” (Domestic Relations Law § 240 [1-b] [b] [5] [vii] [D]). The amount of child support awarded, including the amount of $40 per week for education expenses, is $119 per week. Plaintiff argues that it should be reduced to a total of $90. Under all of the circumstances, and even after deducting the amount actually paid for child support for plaintiff’s other child, we find that the sum awarded is appropriate.

The judgment is modified by deleting the distributive award designed to meet defendant’s educational needs. "[TJhere is no authority for making a distributive award to provide compensation to a spouse” (Scheinkman, 1987 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, 1990 Supp Pamph, Domestic Relations Law C236B:29, at 54; see also, Cappiello v Cappiello, 66 NY2d 107, rearg denied 67 NY2d 647). In view of the deletion of the distributive award, we remit the matter to Supreme Court to reconsider the amount of the monthly award for maintenance, taking into consideration defendant’s educational needs.

In addition, the judgment is amended by deleting the provision for an increase in the award for maintenance upon the emancipation of the child (see, Majauskas v Majauskas, 61 NY2d 481, 494-495; Ferriera v Ferriera, 112 AD2d 22; Lesman v Lesman, 88 AD2d 153, 161, appeal dismissed 57 NY2d 956). (Appeal from judgment of Supreme Court, Erie County, Rath, J.—divorce.) Present—Doerr, J. P., Denman, Boomer, Pine and Lawton, JJ.