Once again, a Justice Dollinger opinion, here in Messsinger v. Messinger decided on February 11, 2020, reveals his efforts to dive into the minds of the litigants to work things out.

Under the parties’ 2014 divorce settlement agreement, the father had agreed to finance the son’s college education, except for a $6,000 loan and with a SUNY cap. In exchange, the mother had waived child support for the son while in college, receiving support only for the parties’ younger daughter (and that was reduced in light of other expenses the father was paying). No provision was made for the payment of the future college expenses of the parties’ younger daughter who would not be graduating high school until 2018.

In 2017, the father retired from his $115,000-per-year position and was now receiving his pension (a part of the pension was being paid to the mother as her marital share).

Monroe County Acting Supreme Court Justice Richard A. Dollinger determined that although here was no evidence in the agreement that the parents anticipated the father’s retirement in his late 50s; there was also nothing that restricted his ability to retire. The Court held the father was entitled to determine when to retire.

Given all the facts, including that both parents were receiving a significant pension benefit when the father retired, the Court considered only the parties’ current income when allocating the college costs for the daughter. In the Court’s view, a proportional allocation of the parental cost of the daughter’s college education was not unreasonable, accords with the current financial circumstances of the parents and has some semblance to the terms under which the parents financed the son’s education.

Justice Dollinger noted that in prior instances, he had imposed a cost-sharing with one-third to the student and the remaining two-thirds divided in a pro rata fashion to the parents according to annual income. The child’s share would be reduced by any grants or scholarships.

The Court had also considered whether a SUNY-cap should be imposed and here decided to do so. In their agreement to cover the college costs of their son, the couple imposed a SUNY-cap, equivalent to the costs associated with State University College at Brockport. A similar cost containment feature should be imposed on the daughter’s college education costs.

In other contexts, New York courts have required parents to shield their children from student loans. However, here, the Court require the daughter to seek loans up to her $6,000-per-year allocated responsibility and be responsible for such loans. In that manner, the daughter was to be treated to the same allocation of loan debt given to her brother in the parent’s agreement.

The parties, in their agreement defined college expenses for their son as including applications, fees, tuition, room, board, school fees, lab fees and books. The Court applied this agreed definition to the costs for the daughter as well.

Finally, the Court noted that the 529 account balance (from the proceeds remaining after its use for the son), would be “credited equally between the parents, as these sums were marital money contributed to these tax-deferred accounts.”

[Dividing the 529 account equally between the parties, correctly treated the account as their marital asset: the named student-beneficiary is not the owner; and indeed the account need not be used for the beneficiary at all. This departs from a number of decisions that have mandated that 529 accounts be used to defray college expenses. Applying the 529 proceeds “off the top,” benefits the parties disproportionately, in the same proportion as their responsibilities to pay for expenses.

On the other hand, if the 529 account was a marital asset to be equally divided, its use to pay for the son negates the idea that the father had solely financed “the son’s college education.”

Finally it is noted that no “room and board credit” was discussed by the Court. This appears to be in recognition of the fact that there was no language in the agreement to pay for the son’s college that suggests that when the father began financing a contribution to the daughter’s education that any similar deviation in the presumptive amount of child support was anticipated. “In short, there is nothing in the agreement that indicates that payment of the daughter’s college expenses would result in a downward deviation of the father’s child support obligation.” Justice Dollinger noted that in New York, the courts have declined to link payment of college expenses with child support obligations.

Additional facts may be found in the prior opinion.

The father was represented by Michael Schmitt, of Rochester. The mother was represented by Donald White, of Rochester.