ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the appeal from the judgment is dismissed; and it is further,
ORDERED that the amended judgment is modified, on the law, by (1) deleting the fourth decretal paragraph thereof directing the defendant to pay child support in the sum of $3,000 per month, (2) deleting from the eleventh decretal paragraph thereof the sum of $32,500 and substituting therefor the sum of $24,700, and (3) adding thereto a decretal paragraph directing the plaintiff to pay $7,800 into the children's custodial accounts in equal sums of $1,950 into each account; as so modified, the amended judgment is affirmed insofar as appealed from, the judgment is vacated, the order entered February 14, 2000, is modified accordingly, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings consistent herewith and entry of an appropriate further amended judgment; and it is further,
ORDERED that the defendant shall continue to pay child support in the sum of $3,000 per month until the Supreme Court, Putnam County, makes a de novo determination of child support in accordance herewith; and it is further,
ORDERED that the defendant is awarded one bill of costs.
The appeals from the intermediate order and the judgment must be dismissed because the right of direct appeal from the order and the judgment terminated with the entry of the amended judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeals from the order and the judgment are brought up for review and have been considered on the appeal from the amended judgment (see, CPLR 5501[a][1]).
We agree with the defendant's contention that the Supreme Court erred in effectively awarding the plaintiff an attorney's fee in the amount of $7,800, upon her representation that as of the time of trial, she had paid her attorney that sum. Although "[t]he award of a reasonable counsel fee is a matter within the sound discretion of the trial court" (Grossman v. Grossman, 260 A.D.2d 602, 603), in this case, the evidence submitted by the plaintiff in support of her application was insufficient to support such an award (see, Gordon v. Gordon, 202 A.D.2d 634; Poli v. Poli, A.D.2d [2d Dept., Sept. 17, 2001]). Further, since the plaintiff admittedly paid her attorney $7,800 with money withdrawn from the children's UGMA custodial accounts, that branch of the defendant's motion which was to direct the plaintiff to repay that amount into those accounts is granted.
Contrary to the defendant's contention, he is not entitled to a credit for payments he made voluntarily towards the carrying charges of the marital home (see, Litman v. Litman, 280 A.D.2d 520). However, the Supreme Court should have reduced the plaintiff's distributive award to credit the defendant with his 50% share of the amount he paid to reduce the principal balance of the mortgage on the marital residence while the parties were separated (see, Litman v. Litman, supra). Since the record before us is inadequate to determine the amount of the credit, the matter is remitted to the Supreme Court, Putnam County, for a determination of that credit, and the entry of an appropriate amended judgment on the plaintiff's distributive award.
Finally, the Supreme Court improperly failed to deduct the defendant's FICA contributions and his maintenance obligations from his gross income before calculating his child support obligations (see, Domestic Relations Law § 240[1-b][b][5][vii][C], [H]; Harrison v. Harrison, 255 A.D.2d 490, 491; O'Sullivan v. O'Sullivan, 272 A.D.2d 309, 310). "Additionally, in determining the [defendant's] future child support obligations, the Supreme Court erred in failing to draw a distinction between the combined parental income up to $80,000 and the combined parental income above $80,000 as required by the Child Support Standards Act" (Militana v. Militana, 280 A.D.2d 529, 530). Under these circumstances, the matter must be remitted to the Supreme Court for a de novo determination of the defendant's child support obligation (see, Militana v. Militana, supra).
The defendant's remaining contentions are without merit.
ALTMAN, J.P., FRIEDMANN, SCHMIDT and ADAMS, JJ., concur.