SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 23, 1969
IN THE MATTER OF ESTELLE GOLDBERGER, RESPONDENT-APPELLANT,
MILTON GOLDBERGER, APPELLANT-RESPONDENT
Cross appeals from an order of the Family Court, Broome County, entered January 7, 1969.
Aulisi, J. Herlihy, P. J., Reynolds, Aulisi, Staley, Jr., and Cooke, JJ., concur in memorandum by Aulisi, J.
The parties here are living apart by mutual consent and the petitioner was properly awarded support on a "means" basis, with due regard for the circumstances of the parties (Matter of Steinberg v. Steinberg, 18 N.Y.2d 492, mot. for rearg. den. 19 N.Y.2d 749; see Family Court Act, § 412). In our opinion, the $65 per week support award directed by the trial court must, under the circumstances of this case, be deemed excessive. Respondent in addition to his living expenses is required to make repayments of moneys borrowed by him to finance his daughters' college education. He is also paying $50 per week to his mother, a payment which the trial court concluded that respondent was not legally obligated to make. However, the uncontroverted testimony is that respondent has been making these payments to his mother for several years and that apart from a minimal pension these payments constitute her only source of available funds. That respondent is making these payments, although not strictly obligated in a legal sense to do so, is one of the several circumstances of the parties which merited consideration in fashioning a support award. A review of the entire record leads us to the conclusion that an award of $50 per week is fair and reasonable.
Order modified, on the law and the facts, so as to provide that respondent pay the sum of $50 weekly to the Broome County Probation Department and, as so modified, affirmed, without costs.
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