        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

451
CA 11-01681
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


ROBERT M. WARNER, II, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

APRIL L. WARNER, DEFENDANT-APPELLANT.


LEGAL AID SOCIETY OF MID-NEW YORK, INC., OSWEGO (SUSAN M. FAUST OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN W. SPRING, JR., ATTORNEY FOR THE CHILDREN, PHOENIX, FOR ASHLEIGH
W., THOMAS W., COURTNEY W., BRITNEY W., AND MONICA W.


     Appeal from a judgment of the Supreme Court, Oswego County
(Norman W. Seiter, Jr., J.), entered February 25, 2011. The judgment,
insofar as appealed from, referred to Family Court all future issues
relative to income tax deductions and exemptions concerning the
children.

     It is hereby ORDERED that the judgment insofar as appealed from
is unanimously reversed on the law without costs and that part
referring to Family Court all future issues relative to income tax
deductions and exemptions concerning the parties’ children is vacated.

     Memorandum: Defendant appeals from that part of the judgment of
divorce providing that all future “issues relative to income tax
deductions and exemptions [concerning] the children” shall be referred
to Family Court. We note at the outset that, although the judgment
was entered upon consent, the provision at issue was added by Supreme
Court sua sponte, and defendant’s attorney objected to that provision.
Thus, defendant’s contention is properly before us (cf. Hatsis v
Hatsis, 122 AD2d 111, 111). We agree with defendant that the court
erred in adding the provision with respect to the tax deductions and
exemptions inasmuch as the jurisdiction of Family Court is generally
limited “to matters pertaining to child support and custody” (Matter
of Paratore v Paratore, 90 AD2d 975; see Matter of Howard v Janowski,
226 AD2d 1087, 1087), and tax deductions or exemptions are not an
element of support (see Matter of John M.S. v Bonni L.R., 49 AD3d
1235, 1235; see generally Paratore, 90 AD2d at 975). Although Family
Court Act § 115 (b) provides that Family Court has jurisdiction “over
applications for support, maintenance, a distribution of marital
property and custody in matrimonial actions when referred to the
family court by the supreme court” (emphasis added), marital property
is defined as that property which is acquired during the marriage (see
Domestic Relations Law § 236 [B] [1] [c]), and the parties’
                                 -2-                           451
                                                         CA 11-01681

entitlement to tax deductions and exemptions concerning the children
will affect only property acquired after the marriage.




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
