Messinger v Messinger

[*1] Messinger v Messinger 2019 NY Slip Op 52161(U) Decided on April 24, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 24, 2019
Supreme Court, Monroe County

Richard A. Messinger, Plaintiff,

against

Cindy A. Messinger, Defendant.



10/11807



APPEARANCES:

Michael Schmitt, Esq.

Attorney for Plaintiff

New York, New York

Donald White, Esq.

Attorney for Defendant

Rochester, New York
Richard A. Dollinger, J.

In this matter, the court is - once again - dragged into a controversy over financing college education costs.[FN1] In this instance, the parties agreed to finance their oldest son's college education, but made no allowance for their younger daughter and her mother now seeks a contribution from the child's father for the daughter's college costs.

In 2014, the parties signed an opting out agreement to resolve their matrimonial dispute. In 2016, their divorce decree was signed, incorporating the agreement. The agreement made provisions for financing the older son's college costs and allocated those costs between the then-working parents. The agreement never mentioned the younger daughter and the financing of her college costs. When the daughter graduated from high school in the spring of 2018, she enrolled in a two-year veterinary program. The mother currently works two jobs and earned in 2017 a total of $34,834, a number that included $1,000 per month in spousal maintenance. In addition, the wife also received $1,683 each month in 2018 as her marital share of her former spouse's New York State pension. The father retired in 2017, works part-time and claims he earned slightly less than $40,000 annually. In his last-full year before retiring, the father earned [*2]$115,825.

The crux of this matter rests with whether the father has any obligation to help finance the daughter's education. There is no contractual obligation: the agreement is silent on the daughter's college expenses and neither parent is obligated, under the agreement, to pay for any such expenses. The absence of an contractual obligation to finance college costs is not determinative. The Domestic Relations Law provides:

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.

NY DRL § 240 (1-b) (c) (7); see also Family Court Act § 413 (c) (7). The New York courts have given that legislative command a wide berth, holding that a court may properly direct a parent to contribute to a child's private college education, even in the absence of special circumstances or a voluntary agreement of the parties, so long as the court's discretion is not improvidently exercised in that regard.[FN2] Matter of Paccione v. Paccione, 57 AD3d 900 (2d Dept 2008); Manno v. Manno, 196 AD2d 488 (2d Dept 1993). In determining whether to award educational expenses, this court does not have unfettered discretion in making such an award and must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the child, and the requirements of justice. Matter of Pittman v. Williams, 127 AD3d 755 (2d Dept 2015). The New York courts have set forth factors to be considered in such a determination, including the educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child. S.B. v. J.R., 43 Misc 3d 171 (Sup. Ct. Monroe Cty 2013). In that later case, this court borrowed a series of principles from the highest court in New Jersey and listed a series of factors, including:

(1) the ability of the parent to pay the cost from their annual income;

(2) the relationship of the requested contribution to the kind of school or course of study sought by the child;

(3) the financial resources or assets of both parents or their access to other assets or income from other members of the household or grandparents and the lifestyle of their current household;

(4) the commitment to and aptitude of the child for the requested education;

(5) the financial resources of the child, including assets owned individually or [*3]held in custodianship or trust;

(6) the ability of the child to earn income during the school year or on vacation;

(7) the availability of additional financial aid in the form of college grants and loans;

(8) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and,

(9) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

Newburgh v Arrigo, 88 NJ 529, 545, 443 A2d 1031, 1038-1039 (1982). Other New York courts have considered whether the obligation to pay college costs impacts a parent's ability to maintain a separate household. Matter of Ocasio v. Smith, 70 AD3d 952 (2d Dept 2010); Matter of Amos-Richburg v. Richburg, 94 AD3d 1112 (2d Dept 2012). In considering the "justice" factor in this analysis, justice flows three ways - in favor of each parent and the child and requires some balancing of the ability to pay of all three parties with the necessity for a child to have an indispensable post-secondary education.

In considering these factors here, both parents have bachelor's degrees, which attests to their commitment to secondary education. In addition, they agreed to finance their son's college education, when it was imminent. With three college degrees already in the family, it seems "inconceivable"[FN3] that either parent would suggest they had no obligation to finance the last degree for the daughter. There is also evidence that the parents intended to finance their daughter's college education. The couple advanced funds to a 529 account and there are marital funds available in that account to help finance the daughter's college education.[FN4] Having saved tax-deferred funds to finance higher education when their daughter attended public high schools is evidence that the parties intended to finance college costs for their children. The daughter also applied for a variety of tuition-assistance, including the Tuition Assistance Program from New York State, Pell grants and other tuition assistance. Therefore, there is a clear predicate for both parents to contribute to college education expenses for their daughter. As the Supreme Court of New Jersey said:

In the past, a college education was reserved for the elite, but the vital impulse of egalitarianism has inspired the creation of a wide variety of educational institutions that provide post-secondary education for practically everyone. State, [*4]county and community colleges, as well as some private colleges and vocational schools provide educational opportunities at reasonable costs. Some parents cannot pay, some can pay in part, and still others can pay the entire cost of higher education for their children. In general, financially capable parents should contribute to the higher education of children who are qualified students.

Newburgh v Arrigo, 88 NJ at 545, 443 A.2d at 1039. Having concluded that the parent should contribute to these costs, this court must determine who can pay what in this case. In that respect, this court can evaluate both the income and assets of the parents. Niewiadomski v. Jacoby, 61 AD3d 871, 872 (2d Dept 2009); L.L. v. R.L., 36 Misc 3d 777 (Sup. Ct. Monroe Cty 2012).

In this trial, the mother argued that the father's retirement assets could be considered by this court and she offered a statement from the New York State Deferred Compensation Plan as evidence of the father's retirement assets. When the document was offered, the husband's counsel objected, arguing that the document was not authenticated and inadmissible. The court reserved on the issue and asked counsel for memorandums regarding the admissibility of the deferred compensation statement. The mother's counsel argued that the document was "so patently trustworthy as to be self-authenticating." Elkiam v. Elkiam, 176 AD2d 116,117 (1st Dept 1991). The later case indicates that records, procured through discovery from the opposite party, should be presumed to be reliable and authentic and admissible at trial. Carden v. City of New York, 82 AD3d 818 (2d Dept 2011); Asare v. Tamirez, 5 AD3d 193 (1st Dept 2004).

While the pertinence of these cases may be argued regarding this document, the New York State Legislature may have obviated the authentication requirement for the offered deferred compensation statement. CPLR 4540-a was enacted, effective January 1, 2019. The new rule provides that material "produced by a party in response to a demand . . . authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party." The legislative support memoranda states:

Designed to illuminate the needless authentication burden often encountered by litigants who seek to introduce into evidence documents or other items or third or otherwise created by an adverse party who produced those materials in the course of pre-trial disclosure. The new rule was designed to codify and expand on caselaw that has been overlooked by many New York ports, practitioners and commentators.

Assembly Sponsor's Memorandum in Support, Laws of 2018, Ch. 219 (2018). See Driscoll v. Troy Housing Authority, 6 NY2d 513, 519 (1959); see also Smith v. Brown, 61 Misc 3d 681, (Sup. Ct. Bronx Cty 2018) (admissions of the truth of clear-cut matters of fact permitted). The only issue for this court is whether the copy of the deferred compensation statement was "created" by the father. In that respect, the document unmistakably originates in the New York State Deferred Compensation system. The document - the piece of paper on which the status of the account is established - is "created" when someone (presumably the father) downloads the account status from the Deferred Compensation website. By downloading the father's account information, the father "creates" the document and when he delivers that document to the mother during the disclosure process under Article 31 of the CPLR, he is relying on it as [*5]authentic testimony of the value of his account on the date referenced and making a similar representation of its authenticity and accuracy to the mother, to whom he delivers it. Therefore, this court considers the document produced at the time of trial and disclosed by the father during the disclosure process in this matter as "created" by the father as a party in this litigation and therefore the presumption of its authenticity is established under CPLR 4540-a. The father's objection to its admission is overruled unless he can prove by a preponderance of the evidence that the deferred compensation statement is not authentic. Because the court reserved on the admission of this document at the time of the hearing and has introduced a new wrinkle - via the new rule in CPLR 4540-a - this court will permit the father an opportunity to rebut the presumption before reaching any final decision.

The admission of the father's deferred compensation statement ushers this matter into a new analysis. If the court can consider the husband's deferred compensation account as a source for contributions to the daughter's college costs, then those available funds - and any similar retirement accounts (including the wife's share of the deferred compensation account which she received under the settlement agreement) — become available resources to finance the daughter's college costs. The issue for the court, if those assets are considered, is to what extent the court may require invasion of those tax-sheltered assets to finance the daughter's college costs. The court is well aware that invading the accounts may have significant tax implications for both parents and this court must consider those consequences as well.

This court, at this stage, is unwilling to make that calculation and the interests of justice require further disclosure and analysis. The court will require the following:

(A) the father has 10 days to submit any argument that would overcome the presumption for admission of the deferred compensation statement under CPLR 4540-a;(B) the mother will forward to the father within 10 days of this decision any statements of her retirement accounts including her share of the New York State deferred compensation account awarded to her during the divorce and any TIAA-CREF funds available as of January 1, 2019;(C) the father will also forward to the mother within 10 days of this decision any statements of his retirement accounts including his share of any TIAA-CREF funds available to him or in his name as of January 1, 2019 or otherwise transferred to him as a result of the divorce;(D) both parties will exchange within 10 days of this decision any income tax returns filed for their income for 2018 and any W-2 wage statements or 1099s for income earned during that year; and(E) the parents will also forward any W-2 wage statements for wages earned by their daughter in 2018.

This opinion constitutes the decision of this court. The court reserves on the issue of the parties' respective contributions to the daughter's college costs for 2018-2019, costs for future years and reimbursement for prior years and further reserves on the question of an award of legal fees. The court will re-open the proof to allow both parties to present the additional information discussed above and apply it to the factors enunciated by both the new York courts and our colleagues in New Jersey as set forth [*6]in Newburgh v Arrigo. The father's request to deny the mother's application in its entirety is denied.

SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48.

Dated: April 24, 2019

________________________________

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:See Borrelli v. Borrelli, 2019 NY Misc LEXIS 1030 (Sup.Ct. Monroe County 2019) and cases cited in footnote 1.

Footnote 2:In this case, the court is asked to resolve the issue of college contributions after the child has already been enrolled in post-secondary education for a year. The statutes does not contain any limitations period for an application to finance these costs and this court declines to impose any such limitations. The statute should be read to allow a parent, on behalf of a college-aged child, to seek contributions or recoup advanced expenses at any time.

Footnote 3: See The Princess Bride, Vizzini, (20th Century Fox1987). This movie has been cited by other nearby courts for other phrases in the film. Baldwin v. New York State, 2105 US Dist LEXIS 14829, n.1 (W.D.NY 2015)

Footnote 4:A 529 plan is a tax-advantaged savings plan designed to encourage saving for future education costs. 529 plans, legally known as "qualified tuition plans," are sponsored by states, state agencies, or educational institutions and are authorized by Section 529 of the Internal Revenue Code. IRC § 529. The father, in his application, suggests that he should get credit for any advance from the 529 account as part of his share of college contribution. But, the 529 funds, while perhaps deposited by the father from some account at an earlier time, are marital funds earned during the marriage and there is no evidence otherwise.