Hangartner-Schuchmann v Hangartner

Hangartner-Schuchmann v Hangartner 2008 NY Slip Op 03077 [50 AD3d 335] April 8, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 18, 2008

Anna Hangartner-Schuchmann, Respondent-Appellant,
v
Philipp P. Hangartner, Appellant-Respondent.

—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains (Evan Wiederkehr of counsel), for appellant-respondent.

Fuchs & Eichen, LLP, White Plains (Linda A. Eichen of counsel), for respondent-appellant.

Order, Supreme Court, New York County (Saralee Evans, J.), entered April 21, 2006, which, insofar as appealed from as limited by the briefs, denied defendant's motion seeking a modification of the visitation schedule set forth in the parties' separation agreement, and denied plaintiff's cross motion seeking reimbursement for tutoring expenses for the couple's child, and for attorney's fees, unanimously affirmed, without costs.

Defendant failed to show the existence of a material change of circumstances to warrant a modification of the separation agreement's child visitation provisions (see Skidelsky v Skidelsky, 279 AD2d 356 [2001]; Lewin v Frances, 270 AD2d 89 [2000]), or that the modification he proposes would be in the child's best interests at this time (see Steck v Steck, 307 AD2d 819 [2003]).

Plaintiff is not entitled to recover a portion of the child's tutoring fees, which she unilaterally decided to incur, since the settlement agreement provides that educational decisions must be made jointly after consultation between both parties (see Matter of Aiken v Aiken, 115 AD2d 919, 921 [1985]). Furthermore, the record fails to establish that defendant willfully withheld payment for child-related expenses from plaintiff, and accordingly, plaintiff's request for attorney's fees was appropriately denied (compare Cion v Cion, 253 AD2d 595, 596 [1998]). Concur—Lippman, P.J., Friedman, Catterson and Moskowitz, JJ.