Mahoney, P. J., and Casey, J., dissent in a memorandum by Casey, J. Casey, J. (dissenting). Because the child support provided for in the parties’ stipulation of settlement and divorce decree is "to be equally allocated between the two children”, it would be illogical to construe the provision as requiring the continued payment of a child’s allocated share of child support to a parent who no longer has custody of the child. Rather, it is our view that the allocated child support provision should be construed as requiring that each child’s share of child support be paid to that child’s custodial parent. Once sole custody of Nicole was granted to defendant, the support provision, in effect, required that he pay Nicole’s *1105allocated share of child support to himself, as Nicole’s custodial parent, thereby reducing his payment to plaintiff to the amount of child support allocated to Nicole’s sister, whose custody remained with plaintiff. Supreme Court, therefore, was not required to modify the existing child support provision, which should be construed as permitting the reduction in defendant’s payment to plaintiff, and there is no need to remit the matter to Supreme Court to make a determination of new child support.
As to the issue of arrears, no modification of the child support provision was necessary to allow the reduction in defendant’s payment to plaintiff to the amount of child support allocated to Nicole’s sister because, as explained above, the specific provision requiring equal allocation of child support between the two children authorized such a reduction upon the change of Nicole’s custody from plaintiff to defendant. The arrears provisions of Domestic Relations Law § 240 (1) and § 244 are, therefore, inapplicable. Nicole’s change in residence from plaintiff’s home to defendant’s home was clearly in contemplation of a change in custody. Defendant contends that he delayed for several months in seeking a change in custody to be sure that such a change was what Nicole wanted, and plaintiff consented to the change in custody. In these circumstances, defendant should not be liable to plaintiff for the share of child support to be allocated to Nicole during the period after Nicole moved in with defendant but before he sought a change of custody.
Because the support provision of the stipulation of settlement and judgment of divorce should be construed as permitting the reduction in the amount payable to plaintiff following the change of Nicole’s custody, defendant has not failed to obey any lawful order compelling payment of support. Plaintiff is not, therefore, entitled to mandatory counsel fees (see, Domestic Relations Law § 237 [c]). In any event, the mandatory counsel fees provision is applicable only in the event of a willful failure to obey (Domestic Relations Law § 237 [c]), and there has been no finding of willfulness in this case.
Supreme Court’s order should therefore be modified by deleting so much thereof as modified the child support provision of the judgment of divorce.