STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

SHARON A. WINTERS,


Plaintiff,


-vs- Index #H-10211


MICHAEL D. WINTERS,


Defendant.


 



LODESTRO, CASS & EDWARDS

(Stephen W. Cass, Esq.

of Counsel) for Plaintiff



FESSENDEN, LAUMER & DEANGELO

(Mary K. Barr, Esq. of

Counsel) for Defendant



DECISION AND ORDER



GERACE, J.


These parties were divorced on 2.21.95 at which time a

stipulation was entered disposing of all matters but one.

The parties were unable to agree about paying off the wife's

student loan of $5,000 and left this to the Court to be

resolved.

Each side was given the opportunity to make a submission

in regard to this debt; however as none have been received,

the Court now issues its decision based on the information

before it.

These parties were married in 1978 and had three

children who are now 16, 14, and 11. The parents will share

joint custody of the children with physical placement with

the father. The youngest child receives social security

benefits which go directly to the father.

The husband earns about $20,000 annually, and the wife

earns about $13,000 annually. The wife will pay $39. a week

to the husband as child support pursuant to the Child Support

Standards Act using the self-support reserve.

There are no other marital debts.

Apparently, the student loan money was not used for

educational purposes. The wife's tuition was free. She said

that she used some of the money to buy the husband a stereo

and other purchases. It is the wife's position that the

husband should have sole responsibility for paying off the

loan since she gave up the furnishings in the marital home

and waived maintenance.

The husband is willing to pay half the loan. He argues

that the wife received the benefit of the education.

While it is true that the wife waived maintenance and

her right to furnishings, the furnishings were apparently not

worth much. While she would probably have been entitled to

maintenance based on the differences in she and her husband's

disposable income and the length of the marriage, her husband

will have the three children living with him. Any amount of

maintenance he could afford to pay her would have been

minimal at best.

Since each party appears to have received some benefit

from the loan, and since each has made concessions, it is

fair to have each be responsible for one half of the

payments.

This is the decision and order of this Court, no further order shall be necessary.


Dated: April 17, 1995

Mayville, New York


 

JOSEPH GERACE

Justice of Supreme Court