Gershon v. Gershon

Judgment, Supreme Court, New York County (John Stackhouse, J.), entered August 7, 2003, awarding defendant $41,026.99, consisting of child support arrears and legal fees, upon a determination that plaintiff was in default for failing to pay 50% of the child’s education and medical expenses, unanimously reversed, on the law, without costs, the judgment vacated and the matter remanded for a hearing as to the credit plaintiff should receive for his contributions to child support, his share of medical expenses and total educational expenses, and any other expenses as contemplated by the parties in their separation agreement. Appeal from order, same court and Justice, entered July 24, 2003, unanimously dismissed, without costs, in view of the foregoing. The motion court erred in deciding this apparent Domestic Relations Law § 244 motion by summarily determining plaintiff’s liability for child support arrears instead of merely identifying issues for determination at a subsequent hearing (Hershkowitz v Hershkowitz, 214 AD2d 303, 303-304 [1995]). The court’s determination failed to resolve a number of issues, such as the credit plaintiff should receive for his contributions to child support, proper calculation of his share of medical expenses and total educational expenses, and proper calculation of his share of any other expenses as contemplated by the parties in their separation agreement. Furthermore, the judgment issued was inconsistent with the court’s written decision and contained several additional errors and omissions (see Madison III Assoc. Ltd. Partnership v Brock, 258 AD2d 355 [1999]). Hence, vacatur of the judgment and remand to the motion court for a hearing are appropriate. Moreover, given that attorneys’ fees were not awarded in the court’s decision and that, as indicated, it is unclear whether defendant will prevail on the 288 merits, the award of attorneys’ fees is improper and should be vacated. Concur—Buckley, P.J., Tom, Sullivan, Ellerin and Williams, JJ.