Caldwell v. Caldwell , 100 Misc. 2d 136 ( 1979 )

OPINION OF THE COURT

Sidney Leviss, J.

This is a motion by defendant for a money judgment for child support arrears and counsel’s fee, and for a payroll deduction order pursuant to section 49-b of the Personal Property Law.

Pursuant to a judgment of divorce of this court, dated May 24, 1971, plaintiff was directed to pay child support payments of $55 per week for each of the two infant children of the marriage, until each child reached her majority, dies or becomes emancipated, among other things.

The Domestic Relations Law of the State of New York provides that:

"Father liable for support of his child or children under twenty-one years of age;

"Mother liable for support of her child or children under twenty-one years of age whenever the father of such child or children is dead, or cannot be found, or is incapable of supporting such child or children” (§ 32, subds 2, 3).

"A 'minor’ or 'infant’, as used in this chapter, is a person under the age of eighteen years.” (§ 2.)

These two provisions of the law with respect to child support are unequivocal in that one or the other of the parents is liable for child support until the child reaches the age of 21 years. Clearly, the intent of the Legislature of the State of New York was to differentiate between majority with respect to emancipation and majority with respect to child support. Accordingly the plaintiff is directed to pay child support until each child reaches the age of 21 years.

Plaintiff in his affidavit in opposition herein admits that he discontinued paying the court ordered support payment of $55 per week for the support of the infant child Adrienne, since she reached the age of 18 on or about July 1, 1978. Plaintiff is accordingly in arrears for such child support payments for 49 weeks, or a total of $2,695. Accordingly, defendant’s motion for money judgment against plaintiff in the amount of $2,695 in her favor is granted.

Counsel’s fee is granted to the defendant in the amount of $250 with respect to this application.

That portion of the motion requesting a payroll deduction order pursuant to section 49-b of the Personal Property Law is denied without prejudice to renewal in the event plaintiff fails to comply further with the judgment of divorce dated May 24, 1971 with respect to child support and alimony payments.

Settle order.