It is common for the parents of young children when entering a divorce settlement agreement to defer until the children approach college age the determination of the parents’ obligations to contribute. The language chosen to express that deferral may be significant.

The recent decision of the Appellate Division, Second Department, in Conroy v. Hacker, lets us know the agreement language is significant. But we are left asking what would have happened without it.

In Conroy, the parties were married in 1991 and were the parents of two children. Their 1999 divorce judgment incorporated, but did not merge, a 1998 separation agreement. As relevant here, the separation agreement stated:

The parties are not making any specific provisions for the payment of college expenses which may be incurred on behalf of the infant children because of the tender age of said children as of the date of this Agreement. The parties do, however, acknowledge an obligation on each of their parts to contribute to the children’s future college expenses in accordance with their financial abilities at that time.

The mother commenced this Suffolk County Family Court Act proceeding to enforce this provision, alleging that the father refused to pay any of their daughter’s college expenses. After a hearing, Support Magistrate Meridith Lafler issued an order directing the father to contribute $2,700 per semester toward the daughter’s college expenses for each semester she has attended college and attends until her emancipation. Judge Jeffrey Arlen Spinner, in effect, denied both parties’ objections to the order.

On the mother’s appeal, the Second Department noted that unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory.

Here, the father voluntarily agreed “to contribute to” his daughter’s “future college expenses in accordance with [his] financial abilities.”

The Court held that contrary to the mother’s contention, the Family Court providently exercised its discretion in determining, based on the father’s financial abilities, that he should contribute the sum of $2,700 per semester (or $5,400 annually) toward the daughter’s college expenses.

There was no discussion of how the $2,700 obligation was reached; and no mention of whether the result would have been any different (higher or lower) without the language of the agreement (e.g., see the blogpost on the extraordinary analysis undertaken by Monroe County Supreme Court Justice Richard A. Dollinger in L.L. v. R.L. in order to apply the agreement made by parents at the time of their divorce to finance their children’s college education “according to their respective means at the time the child attends college”).

Patrick A. Sweeney, of counsel to Walter D. Long, Jr., of Hauppauge, represented the mother. Kevin P. Barry, of Poughkeepsie, represented the father.