Matter of Amy D. v David D.

Matter of Amy D. v David D. 2006 NY Slip Op 08405 [34 AD3d 1232] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

In the Matter of Amy D., Respondent, v David D., Appellant. (Appeal No. 1.)

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Appeal from an order of the Family Court, Erie County (Rosalie S. Bailey, J.), entered June 13, 2005 in a proceeding pursuant to Family Court Act article 4. The order, among other things, vacated an order of the Support Magistrate and directed respondent to pay a certain percentage of the costs of the therapeutic boarding school that the parties' son attended.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting respondent a credit for child support paid during the period that the parties' son resided at the therapeutic boarding school and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: Respondent appeals from an order of Family Court that requires him to pay 49% of the costs of the therapeutic boarding school that the parties' son attended. The costs were financed by a 20-year loan obtained by petitioner's fiancé for which petitioner is liable. The court properly determined that placement of the parties' son at the therapeutic boarding school was in his best interests. The parties' son was a drug-addicted runaway who was in poor physical health and suffering from the psychiatric condition known as oppositional defiance disorder. He was thus in need of this extraordinary care (see Domestic Relations Law § 240 [1-b] [c] [7]). However, because the parties' son was actually in residence at the therapeutic boarding school in another state, the court should have credited the child support payments made by respondent during the period of such residency against his share of the education loan payments (see generally Matter of Kellogg v Kellogg, 300 AD2d 996, 997 [2002]). We therefore modify the order accordingly, and we remit the matter to Family Court to determine following a hearing, if necessary, the amount of the credit to which respondent is entitled and to recalculate respondent's monthly payments toward the education loan. Present—Gorski, J.P., Smith, Centra and Green, JJ.