Bocka v Bocka

[*1] Bocka v Bocka 2016 NY Slip Op 51699(U) Decided on November 28, 2016 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2016
Supreme Court, Monroe County

Deborah C. Bocka n/k/a DEBORAH C. BERNACKI, Plaintiff,

against

Paul E. Bocka, Defendant.



97/11338



Timothy E. Ingersoll, Esq.

Attorney for Plaintiff

Rochester, New York

Sharon Kelly Sayers, Esq.

Attorney for Defendant

Rochester, New York
Richard A. Dollinger, J.

The Chambers Brothers in 1967 told us, "Time has come today . . . can't put it off another day."[FN1] The song's cow-bell tick-tock sound signals that, in this case, the time has come for a couple who, when faced with financing college education for very young children more than 18 years ago, said, in essence, "we'll decide what to do when the time comes."

That time has come today.

The mother moves to collect college expenses for two children and compel their father to contribute to future expenses. The couple were divorced 18 year ago. In their separation agreement, carved out when their children were very young, they "acknowledged a joint obligation" to assist "each child in obtaining [college] education." The agreement contained a contained a familiar refrain: they "mutually agree[d] to discuss their respective contributions towards the higher education of each child." [*2]When the time actually came, the mother alleges that the father declined to discuss the costs and his share of the payment. In 2013, apparently after the first child had commenced college, the mother alleges that she filed a proceeding in family court, demanding that the father contribute, which she eventually withdrew because the father assured her that he would start paying his share. He never did and she now renews her claim for contribution to the college costs back to the date that the children matriculated.

In response, the father moves to dismiss the application, claiming that the mother was collaterally estopped from seeking the payment sharing or, in the alternative, the principle of res judicata silenced her claims. The father notes that the mother, at the time she filed this supreme court motion, had a petition pending in family court seeking an increase in child support and reimbursement for past college expenses. The mother, in the application to this Court, never mentioned the family court proceedings that she had commenced. In a close examination of the family court petition, someone, at the time of the filing of the petition, wrote that the father had failed to obey the order of the Court because of a "failure to assist in paying college-related expenses including tuition, books, room and board despite divorce agreement saying that he would." The father claims that both parents, appearing without counsel, testified in the family court proceeding.[FN2]

Significantly, the family court hearing officer held that she had the jurisdiction to determine the parties' contributions to college expenses but her ability to award such costs retroactively was limited to the date when the mother filed her request for the allocation. The hearing officer held:

There cannot be an enforcement of the father's obligation to contribute to the college expenses prior to the 3/24/16 filing date as there is no specific allocation or assessment of what the parties obligations for contribution would be — it just sets an agreement to agree that the parties go to court.

The hearing officer held that the language of the separation agreement, as it applied to defining the parents' past contribution to college costs, was unenforceable. However, because the agreement required a court determination of future contributions, the hearing officer allocated the future college costs between the parents and added that the payments would continue until the child was 22. No appeal or objections were filed to the hearing officer's determination. Under these circumstances, the father claims that the mother 's petition sought payment of past expenses, the hearing officer's decision did not grant those expenses and therefore, the hearing officer's decision is res judicata and the mother's claims were extinguished when she failed to object to the hearing officer's decision.

In this case, the hearing officer determination in family court is entitled to res judicata effect if, at the time of the family court hearing, the issue of payment of accrued college costs was before the Court. A simple reading of the hearing office decision [*3]demonstrates that issue was before it. The hearing officer clearly contemplated whether she could order payment for past college expenses and concluded she could not determine the couple's respective shares retrospectively. Res judicata applies to the hearing officer's final, unappealed decision. Matter of Stephen N. v Amanda O., 140 AD3d 1223, 1225 (3d Dept 2016)(res judicata "'gives binding effect to the judgment of a court of competent jurisdiction and prevents the parties to an action, and those in privity with them, from subsequently relitigating any questions that were necessarily decided therein'"). Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 13 (2008). The hearing officer's determination was a final decision on the merits for res judicata purposes. Matter of Irma A. v David A., 139 AD3d 454 (1st Dept 2016); Backhaus v Backhaus, 128 AD3d 872 (precluding relitigation of child support claims based on res judicata); Matter of Singer v Windfield, 125 AD3d 666 (2d Dept 2015)(under New York's transactional approach to res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy).

In seeking to avoid the reach of res judicata, the mother argues that the family court hearing office lacked jurisdiction to enforce the claim for retroactive college costs and hence res judicata does not apply. NY FAM CT ACT §449(limiting orders of support only to be effective upon the date of filing of the petition). However, even if freed from the structures of res judicata, the mother's claim for retroactive college expenses is inconsistent with the language of the agreement. The separation agreement envisions that the parents would discuss their respective contributions at the time the child was considering college education. The agreement refers to a number of time-sensitive issues that would impact a parent's contribution: the child's motives, the child's relationship with each parent, the child's financial resources, the parents' resources, the availability of financial aid, the choice of an institution, the child's "level of performance undertaking instruction" and other factors. These factors are all time sensitive, in that they would be reviewed by the parents at or before the time the child elects a program of college study or during the child's college years, when their "level of performance" might be measured by either parent. In addition, the agreement's "resolution clause," enabling either party to seek an order requiring a contribution requires a court to make its determination "in light of the financial and other circumstances then existing." These sentences, consecutive in order in the agreement and read in conjunction, are unambiguous and clearly envision that the parents, in seeking to define their respective contributions to their children's college experience, would confer prior to incurring the expenses and then either parent, unsatisfied with the results, could petition the Court for a resolution based on their financial circumstances or any other circumstance mentioned in the agreement before incurring that obligation. If a parent waited until after the college costs were incurred, then the parents would confront the problem that currently exists of retracing their respective financial conditions, the circumstances of the relationship with their children, the institution selected and "level of performance" — "then existing" — to decide their respective contributions. The unambiguous language of the agreement simply does not provide a foundation for an award of college costs after they have been incurred.

The New York courts have been reluctant to enforce agreements to agree [*4]regarding the payments of college expenses. In Matter of Wood v Wood, 105 AD3d 637 (1st Dept 2013), the parties never reached an agreement on how the child's college education expenses would be paid. The agreement did not require any set amount to be paid by either parent and the court held the plain language of the college education provision in the stipulation of settlement constituted nothing more than "an unenforceable agreement to agree." Id at 638. Other New York courts have frowned on enforcing "by mutual agreement" clauses in separation agreements, holding that within the context of matrimonial proceedings, these provisions cannot be viewed as having any more force than an agreement to agree. Guevara v. Guevara, 262 AD2d 251 (1st Dept 1999). To be enforceable, an agreement must contain all of the material terms and evince a clear mutual accord between the parties. Cohen v Cohen, 120 AD3d 1060 (1st Dept 2014)(on-the-record agreement was too incomplete and indefinite to be enforceable, and was merely a non-binding agreement to agree). It is well settled that "a mere agreement to agree, in which a material term is left for future negotiations, is unenforceable." Bernstein v. Felske, 143 AD2d 863 (2d Dept. 1988). Therefore, it is not enough that the parents agreed to share the cost of college education, they must have agreed to the actual allocation for it to be enforced by either the hearing officer or this Court. Here, they simply agreed to a process to achieve the allocation.[FN3] Anderson v Kernan, 133 AD3d 1234 (4th Dept 2015)(it is not enough that two parties have agreed together to act in concert to achieve some stated objective). Having attained the contractual right to apportionment of future college costs from family court, the mother has no claims for past college expenses under the agreement.

The father, apart from his argument under the agreement, also claims that the mother is collaterally estopped from requesting retroactive payments. This Court declines to find an estoppel that bars the mother 's claims. "An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury." Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175 (1982). There is no evidence that the father, in any manner, changed his position on the mother's forbearance in seeking payment of college costs. He simply did not pay, even though he does not dispute that he knew his children were attending college. Because there is no evidence of any detrimental reliance, this Court does not find an estoppel that bars these claims.

Finally, this Court concludes, as an alterative ground for denial, that the mother abandoned her right to seek college payments by failing to seek judicial assistance to establish the contribution at the time the expenses were incurred. It is well settled that "contractual rights may be waived if they are knowingly, voluntarily, and intentionally abandoned." Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Management, L.P., 7 NY3d 96 (2006). Proof of abandonment "may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported [*5]advantage." General Motors Acceptance Corp. v. Clifton-Fine Cent. School Dist., 85 NY2d 232 (1995). In order to release a contract or contractual provision, there must be a "clear manifestation of intent," and a waiver "should not be lightly presumed." Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988). Here, the mother delayed several years before seeking a judicial determination of her ex-husband's obligation to pay college costs. There is no proffered justification for this delay. She claims that he declined to discuss college costs before either child went to college. She also claims that in 23013, she brought a proceeding to determine the father's contributions to college and she withdrew it, when he assured her that he would pay.[FN4] He never did yet the children attended expensive private colleges which cost more than $190,000, according to the mother 's calculations. The mother claims that she invaded her retirement funds to pay these costs but there is no evidence, at any time, that she made any attempt — other than three years ago — to enforce her absolute right under the agreement to have a court decide — and require — the father's contribution to these future costs. This Court can only conclude that the mother abandoned her claim to recover any sums expended for college prior to her petition in family court because she failed to timely invoke the "let the court decide" option under the agreement.[FN5] The time to do it has come and gone.

The mother 's application is dismissed.

SUBMIT ORDER ON NOTICE. 22 NYCRR § 202.48.

November 28, 2016

_________________________________

Richard A. Dollinger Footnotes

Footnote 1: Time has Come Today, Willie and Joe Chambers, Columbia Records, 1967

Footnote 2:The parties exchanged vitriolic comments about each other and their personal lives in the affidavits before the Court. It would seem, 19 years after the divorce became final, that, as The Chambers Brothers once advised, "the time has come" to end the bitterness that still seems to motivate both of them to bring out the worst in each other.

Footnote 3:If the couple had agreed to allocate the cost based on their incomes at the time and not included the range of subjective factors that are included here, this Court would be more likely to require the father to pay his proportionate share of past expenses as a clear breach of contract existed. Friedman v Friedman, 38 N.Y.S.3d 583 (2d Dept 2016); Matter of Curley v Klausen, 110 AD3d 1156 (3d Dept 2016)

Footnote 4:The sworn statement that the father agreed to pay as a condition of the withdrawal is at odds with the sworn statement the mother filed with family court at the time of the withdrawal. In that documents, she said" [the father] states that he will continue to keep open communication in regard to college expenses and will discuss contributing as needed moving forward." There is no promise to pay contained in the mother 's summary of the reasons for the withdrawal. The Court takes judicial notice of this filed document in the family court records. Matter of Monarch Consulting, Inc. v National Union Fire Ins. Co..., 123 AD3d 51 (1st Dept 2014); Matter of Washington County Dept. of Social Servs. v. Costello, 111 AD3d 1104 (3d Dept 2013)(judicial notice of family court records).

Footnote 5:The mother provided the Court with a detailed summary of checks and invoices allegedly detailing her payment of the college expenses as set forth in a chart that accompanied the original motion filing. Because this Court concludes that the mother 's claim for retroactive relief is denied, this Court did not consider those documents.