Allowing a state of facts to exist for a period of time without objection will often lead a court to continue those facts. Here, the court required a father to contribute to the cost of his son’s private school education, where the child had been attending the school for some 10 years, even though a scholarship had been awarded in prior years.
In an April 24, 2012 decision, the Second Department reversed so much of the order of Westchester County Family Court Judge David Klein which denied a mother’s objections to the order of Support Magistrate Esther R. Furman. That order failed to direct the father to pay his pro rata share of the private school expenses of the parties’ child. The Second Department also reversed the sua sponte termination of the father’s obligation to contribute to trial care expenses.
In Amos-Richburg v. Richburg, the parties, divorced since 2003, are the parents of one child born in or about 1995. When the child was three years old, the parties had jointly enrolled him in a private pre-kindergarten, where he received a full scholarship. The divorce judgment incorporated and continued the terms of a Family Court order of support, entered December 8, 1999, which, in part, obligated the father to pay the mother $102 biweekly for child care. The judgment of divorce and the prior order of support were silent as to the parties’ respective responsibilities for the child’s private school expenses in the event that he ceased to receive a full scholarship.
In June, 2008, the mother filed a petition seeking an upward modification of the father’s child support obligations. She requested that the father be directed to pay his pro rata share of the child’s private school expenses. The child, then 13, was enrolled in the same school since pre-kindergarten. However, the child no longer received a full scholarship, and the mother alone had been paying his expenses. After a hearing, the Support Magistrate, among other things, denied the mother’s request to direct that the father pay his pro rata share of the child’s private school expenses. The Magistrate, on her own motion, terminated the father’s obligation to contribute to child care expenses. The mother’s objections to these rulings were ultimately denied by the assigned Family Court Judge.
The Second Department reversed, holding that the the Support Magistrate improvidently exercised her discretion in denying the mother’s request to direct the father to pay his pro rata share of the child’s private school expenses. Pursuant to Domestic Relations Law § 240(1-b)(c)(7), the court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court’s discretion is not improvidently exercised in that regard.
Here, the child had been enrolled in the private school with the father’s approval, and performed well in that school. Thus, the appellate court ruled:
It was in the child’s best interest to remain at that school, rather than having his academic and social life disrupted by a transfer to a different school.
Additionally, there was no evidence that the father’s ability to support himself and maintain his own household would be impaired if he were directed to pay his pro rata share of the child’s private school expenses.
Additionally, the Support Magistrate erroneously terminated the father’s obligation to contribute to child care. Where the custodial parent incurs child care expenses as a result of employment, the noncustodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation> Such child care expenses shall be prorated in the same proportion as each parent’s income is to the combined parental income.
Here, the mother worked as a private banker, which often requires her to work until 11:00 P.M. or midnight during the week. She did not believe that the parties’ 13-year old son was old enough to be alone for such long periods of time after school. Indeed, she was paying a babysitter to watch him three or four times a week. Under these circumstances, it was error for the Support Magistrate to, sua sponte, terminate the father’s obligation to contribute to child care expenses. Accordingly, the father’s obligation to contribute to child care expenses must be reinstated.
The parties should have addressed that what-ifs either in their 1999 Family Court or 2003 divorce court proceedings. If the father was unwilling to pay if the child’s scholarship was terminated, at least that fact could have been memorialized. hindsight is easy.
Absent good cause, it is common for courts to act to minimize the disruption to the children of divorce. That may mean allowing the children to remain in the marital residence until graduation, or to remain in the same school, with the same friends. Here, the father provided no such good cause.
The mother was represented by Brett Kimmel of New York City.