Sipprell v. Merriweather , 54 A.D.2d 613 ( 1976 )

Order unanimously affirmed, without costs. Memorandum: By order of the Erie County Family Court, respondent was directed to pay $100 per week for the support of petitioner, his wife, and 8 of the couple’s 16 children who are minors and who currently reside with petitioner. This support award was in all respects proper. The record indicates that respondent’s net monthly wages are $939.16 with monthly expenses of $663.44, leaving him with a net monthly income of only $275.72. However the record also indicates that respondent claims that he furnishes support for six of the couple’s older children who are all over 21 years of age. This support commitment results in food expenses of $280 per month for respondent. Petitioner, on the other hand, is currently unemployed and receives $159 per month in unemployment as well as $568 per month in welfare assistance. Inasmuch as a father is only legally chargeable with the support of those children who are under 21 years of age (Family Ct Act, § 413), respondent’s desire to assist with the support of his older children cannot serve either to defeat or to limit his statutory obligation to provide for the support of those children under 21 years of age who reside with petitioner. To do so would necessitate sacrificing a legal obligation for what is at best a moral one. To this extent, the court properly disregarded those claimed monthly expenses relating to the support of the older children and, absent these expenses, respondent’s ability to comply with the support award cannot be disputed. (Appeal from order of Erie County Family Court— support.) Present—Moule, J. P., Cardamone, Simons, Mahoney and Witmer, JJ.