John P. v Valerie P.

[*1] John P. v Valerie P. 2013 NY Slip Op 51853(U) Decided on October 18, 2013 Supreme Court, Westchester County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 18, 2013
Supreme Court, Westchester County

John P., Plaintiff,

against

Valerie P., Defendant.



2610/05

Colleen D. Duffy, J.

On March 14, 2013, Defendant Valerie P. ("Defendant") filed an order to show cause, affidavit, net worth statement, affirmation of Donna E. Abrams, Esq., and exhibits thereto (the "Order to Show Cause"), as well as a memorandum of law in support, seeking an order directing Plaintiff John P. ("Plaintiff") to contribute his pro rata share of the private school tuition and related expenses of the parties' child (hereinafter, the "Subject Child") as well as attorney's fees.

On April 3, 2013, Plaintiff filed an affidavit and exhibits thereto in opposition to Defendant's order to show cause contending that Defendant's application is frivolous and that it should be denied and requesting attorney's fees.

On April 9, 2013, Defendant filed a reply affidavit and exhibits thereto, as well as a reply affirmation of Donna E. Abrams, Esq., in further support of the order to show cause.

For the reasons set forth herein, Defendant's order to show cause is granted in part and [*2]denied in part; Plaintiff's cross motion is denied.

BACKGROUND OF THE ACTION

The parties were married in 1995 in Pelham, New York. The Subject Child is the only child of the marriage. On September 21, 2006, the parties entered into a parenting agreement which was so ordered by the Court ("Parenting Agreement"). On December 4, 2006, the parties entered into a stipulation of settlement and separation agreement (hereinafter, the "Stipulation of Settlement") to which the Parenting Agreement was annexed as an exhibit. The Stipulation of Settlement provides that the parties "confirm all of the terms and provisions of the Parenting Agreement." Stipulation of Settlement, Article VII, ¶ 1.

The parties were divorced on December 5, 2006, pursuant to a Judgment of Divorce which incorporated by reference but did not merge with the Parenting Agreement and Stipulation of Settlement (hereinafter, the "Judgment of Divorce").

Pursuant to the Parenting Agreement, the Stipulation of Settlement and the Judgment of Divorce, the parties share joint decision-making with respect to major decisions affecting the welfare of the Subject Child. Parenting Agreement, ¶ 3.2; Stipulation of Settlement, Article VII, ¶ 1; Judgment of Divorce, Second Decretal Paragraph, p. 2.

With respect to the issue of child support, pursuant to the Stipulation of Settlement and the Judgment of Divorce, Plaintiff agreed to pay to Defendant $8,000.00 per month which includes child care and extra-curricular activity expenses for the Subject Child. Stipulation of Settlement, Article IX, ¶ 4, Judgment of Divorce, Fifth Decretal Paragraph, pp. 2-3. The parties agreed that Plaintiff's child support obligation is not subject to a cost of living adjustment and that it shall end upon the emancipation of the Subject Child as set forth in the Stipulation of Settlement. Stipulation of Settlement, Article VIII, ¶ 1, Article IX, ¶¶ 5, 6; Judgment of Divorce, Fifth Decretal Paragraph, pp. 2-3.

The parties also agreed that there would be no reduction in the amount of child support in the event that Defendant no longer has any child care costs or in the event that any such child care costs are reduced from the then-present amount of $2,600.00 per month. Stipulation of Settlement, Article IX, ¶ 5.

Pursuant to the Judgment of Divorce, all other issues regarding the Subject Child, including but not limited to educational expenses, health insurance, non-reimbursed medical expenses, and college expenses, are in accordance with the parties' Stipulation of Settlement. Judgment of Divorce, Seventh Decretal Paragraph, p. 3.

With respect to the issues of health insurance, non-reimbursed medical expenses and college expenses for the Subject Child, the Stipulation of Settlement contains provisions as to each of those issues, delineating the rights and obligations of each party. Stipulation of Settlement, Article XI, ¶¶ 3-8. The Stipulation of Settlement also provides that Plaintiff shall pay 85 % and Defendant shall pay 15% of the expenses of summer camp for the Subject Child and that Plaintiff's obligation for this expense shall not exceed $8,500.00 in any year. Stipulation of Settlement, Article XI,

¶ 1.

As to educational expenses (other than college), there is no provision in the parties' Stipulation of Settlement pertaining to payment of educational expenses by either party. The only reference to educational expenses is contained in paragraphs 10 and 13 of Article IX. Each [*3]of those paragraphs is a recitation that educational expenses, in the court's discretion, is one of the factors a court considers, pursuant to the Child Support Standards Act ("CSSA"), in calculating an amount of child support.[FN1] Paragraph 18 of that same Article, provides that the parties "understand that the requirements of the [CSSA] to set forth the amount of the basic child support obligation and reasons why [the Stipulation of Settlement] does not provide for payment of that amount may not be waived by either party or their respective counsel" and that the "parties understand that the sole purpose of paragraphs 10 through 17 of [the] Article is to comply with said statutory requirements." Stipulation of Settlement, Article IX, ¶ 18.

CONCLUSIONS OF LAW

A.The Stipulation of Settlement does not Evidence any

Intent by the Parties as to Educational Expenses

As an initial matter, the Court finds that Defendant's contention that the parties' Stipulation of Settlement evidences an agreement between them that the Subject Child's education expenses would be subject to Court discretion is without basis. The section of the parties' Stipulation of Settlement pointed to by Plaintiff, paragraph 13 of Article IX, simply does not support such an assertion, nor does any other provision of the Stipulation of Settlement.

A court should interpret the contract in accordance with its plain and ordinary meaning. Colucci v. Colucci, 54 AD3d 710, 712 (2d Dept. 2008). "[W]hen interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized. Winski v. Russo Kane, 33 AD3d 697 (2d Dept. 2006), citing Matter of Schiano v. Hirsch, 22 AD3d 502 (2d Dept. 2005); Fetner v. Fetner, 293 AD2d 645, 645-646 (2d Dept. 2002). Where the language of the agreement is "clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence." Rainbow v. Swisher, 72 NY2d 106, 109 (1988); Perry v. Perry, 13 AD3d 508, 509 (2d Dept. 2004).

Here, paragraphs 10 and 13 of Article IX appear to be the only provisions in the parties' Stipulation of Settlement that reference educational expenses (other than college). Paragraph 10 is an acknowledgment by the parties that they have been advised by counsel as to the provisions of the CSSA and that they understand such provisions and have had the opportunity to obtain legal advice about the same. Stipulation of Settlement, Article IX, ¶ 10. Paragraph 13 sets forth an amount, $13,600.00, that the parties determined would have been their basic child support obligation pursuant to the CSSA, based upon the first $80,000.00 of the parties' combined parental income, as well as "an additional sum, in the court's discretion, for combined parental income in excess of $80,000.00 based upon consideration of the factors set forth in the [CSSA] and/or by applying the applicable child support percentage[ ] and an additional pro rata amount for health care expenses not covered by insurance and child care expenses and, in the discretion of the court, educational expenses." Stipulation of Settlement, Article IX, ¶ 13. The provision is [*4]simply a recitation that educational expenses is one of the factors a court may consider, pursuant to the Child Support Standards Act ("CSSA"), in calculating an amount of child support above the basic amount calculated upon the first $80,000.00 of combined parental income.

Paragraph 18 of that same Article expressly articulates the scope and meaning of the those two provisions: ". . .[T]he parties understand that the requirements of the [CSSA] to set forth the amount of the basic child support obligation and reasons why [the Stipulation of Settlement] does not provide for payment of that amount may not be waived by either party or their respective counsel" and that the "parties understand that the sole purpose of paragraphs 10 through 17 of [the] Article is to comply with said statutory requirements." Stipulation of Settlement, Article IX, ¶ 18.

Accordingly, a plain reading of the Stipulation of Settlement evidences that there is no reasonable construction of either paragraph 10 or 13 that would suggest that the parties' contemplated that educational costs would be allocated between the parties pursuant to a court's discretion.

B.Domestic Relations Law § 240 (1-b)(c)(7) Sets Forth

the Factors the Court Should Consider in this Matter

The crux of the issue before the Court is what standard of law to apply to Defendant's request to modify child support to require Plaintiff to contribute toward the private school education of the parties' daughter when the Parenting Agreement, Stipulation of Settlement and Judgment of Divorce are silent as to such cost.

Typically, where there is a written agreement between parties as to child support, an upward modification of that child support will not be made unless a party can establish one of the following three bases: (1) when it appears, under a best interests analysis, that the needs of the child are not being met (Brescia v. Fitts, 56 NY2d 132, 141 (1982)), or (2) unless there has been an unforseen change of circumstances and a concomitant showing of need (Boden v. Boden, 42 NY2d 210, 212-13 (1977); Gravlin v. Ruppert, 98 NY2d 1, 5-6 (2002)), or (3) that the agreement was unfair or inequitable when made. Id.

Nonetheless, where, as here, the Parenting Agreement between parties, the Stipulation of Settlement and the Judgment of Divorce are silent as to the costs of private secondary education, the appropriate standard of review required by the Second Department is the discretionary one found in Domestic Relations Law ("DRL") § 240 (1-b)(c)(7),[FN2] which provides, in relevant part, that: Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.

[*5]See also Durso v. Durso, 68 AD3d 1107, 1108 (2009) (where judgment of divorce and stipulation are silent as to private secondary education DRL § 240[1-b][c][7] standard applies); Mrowka v. Mrowka, 260 AD2d 613, 613 (2d Dept. 1999) (standard of "unreasonable and unanticipated change in circumstances" inapplicable where agreement is silent as to educational costs; proper standard is DRL § 240[1-b][c][7]) Amos-Richburg v. Richburg, 94 AD3d 1112, 1113-14 (2d Dept. 2012); Manno v. Manno, 196 AD2d 488, 491 (2d Dept. 1993) (court may properly direct parent to contribute to child's private education, even in absence of voluntary agreement or absence of special circumstances so long as court's discretion, considering factors set forth in DRL § 240(1-b)(c)(7), is not improvidently exercised).

For the reasons set forth below, the Court sets this matter for a hearing with respect to certain disputed facts so that the Court can determine, pursuant to the factors set forth in DRL § 240 (1-b)(c)(7), what, if any, amount Plaintiff is obligated to contribute to the Subject Child's private secondary school expenses.

C.Issues of Fact as to the Factors Set Forth

in DRL § 240(1-b)(c)(7) Require a Hearing

Where, as here, the parties' Stipulation of Settlement and Judgment of Divorce (and Parenting Agreement) are silent as to secondary educational costs, the Court must consider the circumstances of the case, and of the respective parties, and in the best interests of the child, and as justice requires. Durso at 1108; DRL § 240(1-b)(c)(7).

Here, Plaintiff does not dispute Defendant's contentions that the Subject Child applied for and enrolled at the Hackley School with his full support and approval. See Defendant's Affidavit in Support of Order to Show Cause ("Defendant's Aff. In Support"), ¶ 3; Defendant's Reply Affidavit in Support ("Defendant's Reply Aff."), ¶ ¶ 2-9. Thus, the Court finds disingenuous Plaintiff's contention now that there is no need for the Subject Child to go to private high school as the Subject Child could receive a high quality education at either the public school in the district where she currently resides or in the public school in which he resides if she were to live with him. There can be no real dispute that Plaintiff supported and encouraged the Subject Child's attendance at the private school and that she is doing well there. Defendant's Reply Aff., ¶¶ 2-10.

In addition, both of the parties have advanced educational degrees. Defendant's Aff. in Support, ¶ 6. Moreover, Plaintiff does not refute Defendant's contention that the Subject Child has advanced cognitive abilities and requires an academically challenging educational program which she has been afforded at the Hackley School. Defendant's Aff. in Support, ¶ 13.

Accordingly, the Court finds Plaintiff's current assertion that the Subject Child could attend a quality public school, rather than the expensive private school, to be without real merit. As to this "best interests of the child" factor, based on these undisputed facts, the Court finds that private secondary school for the Subject Child is warranted in this case.

Nonetheless, Plaintiff has raised issues of fact with respect to some of the other factors that the Court must consider in accordance with DRL § 240(1-b)(c)(7). Plaintiff contends that his income has dropped since the time of the Stipulation of Settlement to less than 40% of the amount he had been earning and that the current amount of child support that Defendant is receiving is more than sufficient to pay for private high school. Plaintiff's Affidavit in [*6]Opposition to Order to Show Cause ("Plaintiff's Aff. in Opp."), ¶¶ 22, 3 and 20. Indeed, Plaintiff also contends that he already, in effect, is paying 95% of the Subject Child's tuition in that $2,600.00 of the $8,000.00 per month of child support that he pays, which was allocated for child care costs that are no longer necessary, should be used to pay for the school tuition. Plaintiff's Aff. in Opp., ¶¶ 3, 20. As to this issue, Defendant has made no contention about Plaintiff's ability to pay for these educational expenses. However, Defendant is seeking to have Plaintiff pay his pro rata share of the Subject Child's school and expenses, over and above the current child support payment. See e.g., Defendant's Aff. in Support, ¶ 1; Defendant's Reply Aff., ¶ 12. One factor that the Court may consider is whether Plaintiff has resources that would enable him to contribute to the cost of the Subject Child's private high school tuition, beyond the current child support, without impairing his ability to support himself and his own household. Manno at 491.

As the Court must consider the circumstances of the respective parties with respect to what, if any, amount should be paid by Plaintiff, in excess of the current child support, for the Subject Child's educational expenses, the Court will hold a hearing on this issue.[FN3]

D.No Award of Attorney's Fees to Either Party

is Warranted in this Matter

With respect to Plaintiff's cross motion for counsel fees contending that Defendnat's motion is frivolous, the Court denies such application. The Court also denies Defendant's application for attorney's fees.

With respect to Plaintiff's application, the Court has determined that Defendant may have a meritorious argument in seeking to modify the terms of child support with respect to additional payment by Plaintiff for the educational expenses of the Subject Child. Thus, the Court does not find the motion frivolous. Arciniega v. Arciniega, 48 AD3d 607, 607 (2d Dept. 2008) (motion for attorney's fees denied where no evidence opposition to motion was frivolous); Badillo v. Badillo, 62 AD3d 635, 635 (2d Dept. 2009)(under circumstances of case, defendant did not engage in frivolous conduct in opposing plaintiff's motion).Accordingly, Plaintiff's application for attorney's fees is denied.

With respect to Defendant's application for attorney's fees, although it is within the Court's discretion to award counsel fees in post-judgment proceedings of this nature (Domestic Relations Law § 237(b); DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881 (1987)), here, the Court finds no such award is warranted.

The standard for awarding counsel fees includes an inquiry into the nature and extent of services, the performance of counsel under the circumstances, the difficulty of the case, the results achieved and counsel's reputation in the legal community. Id.; [*7]Barnes v. Barnes, 54 AD2d 963 (2d Dept. 1976); McCann v. Guteri, 100 AD2d 577 (2d Dept. 1984). The party seeking the requested fees does not need to prove an inability to pay the fees, although the Court is guided by the relative financial circumstances of the parties and the merits of the matter before the Court. DeCabrera at 881; Carr-Harris v. Carr-Harris, 98 AD3d 548, 552 (2d Dept. 2012).

Here, the Court notes that, although Defendant contends that she sought to avoid court action by attempting to negotiate an agreement with Plaintiff, Plaintiff has raised issues of fact as to whether, pursuant to the factors set forth in DRL § 240(1-b)(c)(7), in the Court's discretion, any additional contribution from Plaintiff for secondary educational expenses, above the current child support, should be paid, and, if so, how much. Under the circumstances of this case, Plaintiff's position that the current child support that he pays per month is sufficient to cover the cost of the Subject Child's tuition, whether ultimately meritorious or not, is not so unduly unreasonable as to be unnecessarily litigious. Celauro v. Celauro, 295 AD2d 388, 744 N.Y.S.2d 46, 47 (2d Dept. 2002)(where husband has a valid basis for his position and ex-wife has sufficient assets to pay her own attorney's fees, court's denial of award of attorney's fees was upheld); Arciniega v. Arciniega, 48 AD3d at 607; Badillo, 62 AD3d at 635. Accordingly, in light of the nature of the application, and the issues Defendant has raised, the Court finds that no award of attorney's fees is warranted.

CONCLUSION

The parties and counsel are directed to appear on October 28, 2013, at 9:30 a.m., for a conference to select a date for a hearing on this matter. The parties are required to file with the Court updated statements of net worth on or before that date.

The Court considered the following submission by the parties: Defendant's order to show cause, dated March 14, 2013, affidavit, affirmation of Donna E. Abrams, Esq., and exhibits thereto, and memorandum of law in support; Plaintiff's affidavit in opposition, dated April 3, 2013 and exhibits thereto; Defendant's reply affidavit, reply affirmation of Donna E. Abrams, Esq., and exhibits thereto.

This constitutes the Decision and Order of this Court.

Dated: White Plains, New York

October 18, 2013

HON. COLLEEN D. DUFFY

JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1: Defendant contends that the language in paragraph 13 of Article IX somehow indicates an agreement by the parties that a Court can determine, in its discretion, whether the Subject Child's educational expenses should be shared, on a pro rata basis, by the parties. As set forth, infra, the Court finds such interpretation to be unreasonable and wholly inconsistent with the plain language of the Stipulation of Settlement.

Footnote 2: Contrary to Plaintiff's contention, the "special circumstances" test is not applicable. See Romans v. Romans, 203 AD2d 549 (2d Dept. 1994 )(application of the "special circumstances" test erroneous; since the advent of DRL § 240(1-b)(c)(7), "special circumstances" standard no longer applies) (citations omitted).

Footnote 3: The Court notes that Defendant filed her motion on March 14, 2013, after approximately two-thirds of the Subject Child's first year at the Hackley School had been completed. Even if successful, Defendant is not entitled to any payment by Plaintiff of tuition or expenses incurred prior to the date of the filing of the application. Mrowka at 613 (any award relative to educational expenses should be made only as of the date of the application) citing DRL §§ 240(1); 236 (B)(7)(a).