It appears that the tremendous burden placed on the Appellate Division, Second Department, to work through its caseload has often led to opinions which leave you wanting to know a little more of the facts so you can put the case into perspective.
Take the the Second Department’s May 31, 2017 decision in Fiore v. Fiore, where the lower court’s opinion was modified to increase a father’s college obligation and which determined summer camp to be the equivalent of child care.
After nine years of marriage and one child, the parties settled their divorce action by an amended agreement that was incorporated into their 2000 Judgment of Divorce. Included among the settlement’s provisions were that the father would pay $12,289 annually for basic child support; that the parents would each pay their pro rata share of unreimbursed medical expenses; and that the father would pay 58% of the cost of day care.
In 2014, the mother moved for upward modification of basic child support, and other child support-related relief, including contribution toward the child’s summer camp and college expenses. Supreme Court, Nassau County Justice Julianne T. Capetola denied the upward modification, denied summer camp expenses, and limited the father’s obligation to pay college expenses to $5,000 per semester.
On appeal, the Second Department upheld the denial of an increase in the basic child support obligation. The mother had failed to meet her burden of proving that there had been a substantial, unanticipated, and unreasonable change in circumstances resulting in a concomitant need, or that the settlement was not fair and equitable when entered into. This was the required burden as the amended stipulation of settlement was entered prior to the effective date of the 2010 amendments to Domestic Relations Law §236(B)(9)(b)(2), when the burden was lessened.
On the other hand, the appellate court held that the child’s summer camp expenses constituted the functional equivalent of day care expenses covered by the parties’ settlement. The Second Department rejected the father’s argument that his obligation to pay his share of the child’s summer camp expenses was not triggered because he did not explicitly consent to the summer camp chosen by the mother for 11 consecutive summers.
The appellate court also held that that it was an improvident exercise of discretion for Justice Capetola to have directed direct the father to pay only $5,000 per semester toward the child’s college tuition.
Without providing the financial details, the appellate court held that the circumstances of this case, including the circumstances of the parties, the best interests of the child, and the requirements of justice, warranted an order directing that the father pay 50% of the child’s total college tuition and expenses. On the other hand the father would be entitled to a credit against his basic child support obligation for payments made towards room and board.
Unfortunately, the absence of facts in this opinion leads to some difficult assumptions. First, to what age is summer camp a day care expense? 16? If so, are child care expenses up to that age to be the norm?
Also, if the basic child support obligation remained $12,289 annually, and the father was here directed to pay 50% of room and board, but get a credit against the basic child support obligation for so doing, the effect could be that all of the father’s basic child support payments end up going for college room and board. For example, the SUNY room and board expenses for 2017/2018 total are $12,810. If the father pays his 50% share, or $6,405, but gets a credit for that amount against his $12,289 child support obligation, that only leaves the mother with $5,884. That’s not even enough for the mother to pay the other 50% of room and board expenses. The mother would be left with no support for the four months of food the child is not at college; clothing; residence overhead; etc.
Jeanine M. Rooney and Lisa R. Schoenfeld of Schlissel Ostrow Karabatos, PLLC, of Garden City, represented the mother. Michael F. LoFrumento of Catterson & LoFrumento, LLP, of Garden City, represented with father.