In the Matter of Carol A. Hazell, Appellant, v David E. Hazell, Respondent

In the Matter of Carol A. Hazell, Appellant, v David E. Hazell, Respondent. (Appeal No. 1.) [MAJORITY] Order unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: The parties were married on April 9, 1960 and divorced on December 22, 1971. Support hearings were held in Family Court, Monroe County, and an order, was entered October • 24, 1972 directing the husband to pay $75 per week alimony and child support and to pay all reasonable and necessary costs in connection with the upkeep of the family home, including mortgage payments, real estate taxes, utilities, insurance and repairs; to keep health insurance in force for his three children; and to pay all reasonable and necessary medical expenses for the entire family. On March 28, 1974 the wife commenced an enforcement proceeding and the husband cross-petitioned for. an order permitting him to pay a specified weekly sum in lieu of the fragmented payments previously ordered. By order of Family Court, Monroe County, entered January 3, 1975 the wife’s petition for enforcement was denied and the arrearages she claimed due were canceled, attorney’s fees were denied, the husband was permitted to commence weekly payments of $170 in lieu of the fragmented award made previously, and certain funds belonging to the husband which had been collected by the court through payroll deduction in an earlier enforcement proceeding were returned to the husband, with the exception of $315 due for attorney’s fees in a prior matter. The record demonstrates sufficiently changed circumstances to warrant the Family Court’s modification of the prior support award. The three children are now 15, 13 and 12 years of age and do not require their mother’s continual supervision. This is evidenced by her election to pursue a full-time course of study at a nursing school. Whatever physical infirmities she may have apparently do not interfere with her studies and we think would not interfere with her pursuit of remunerative employment to help support the family. Further, her former husband no longer may turn to his parents for living accommodations. The court’s order directing payments of $170 per week did not substantially change the total annual amount being paid under the fragmented system and is consistent with our policy of preferring single sum payments over fragmented awards (Hahn v Hahn, 40 AD2d 624). However, we think the court improvidently exercised its discretion in canceling $3,097.93 in arrearages. This sum represents medical, dental and household bills which must be paid. In view of the fact that the husband’s income has increased in recent years, we think it more equitable to cancel $585.90 in arrears, representing the amount prepaid to creditors by the wife; to refuse cancellation of $414.43 in arrears, representing medical, dental and home repair bills of a routine nature; and to divide responsibility for the balance of the arrears, amounting to $2,097.60 which represents a medical and dental expense of major proportions. We find no abuse of discretion in the court’s refusal to award counsel fees or in its ordering a return of a previously ordered payroll deduction. (Appeal from order of Monroe County Family Court in proceeding on support orders.) Present—Marsh, P. J., Moule, Simons, Del Vecchio and Witmer, JJ.