Under the parties’ divorce settlement agreement, the parents were not obligated to share their daughter’s sorority costs whether those costs were viewed as a college expenses or as extracurricular expenses. So held Nassau County Family Court Support Magistrate Sondra M. Toscano in her July 7th decision in Matter of C.A.B. v. D.S.B.
There, the parties’ 2021 Stipulation of Settlement provided in relevant part:
The parties agree and acknowledge that they shall contribute to the costs and expenses associated with each child’s college or post high school vocational education, with the Husband paying sixty five percent (65%) of such cost and the Wife paying thirty-five (35%) of such cost. . . . [t]he educational expenses referred to as the “Cost of College Education” shall consist of tuition, room and board, required supplies by the school, required fees of the college or university, and reasonable transportation expenses for the child for (4) round trips per year.
Magistrate Toscano recognized that the parties’ agreement unambiguously listed the specific college expenses that were to be shared. Sorority costs were not one of them.
However, the Magistrate did not stop there. Instead she considered the effect of language that did not so limit the items included in “college expenses.”
Assuming arguendo that the parties’ 2021 Stipulation contained non-limiting language, the Court would have to decide whether sorority costs are college expenses. The Court considers that question now.
Magistrate Toscano reviewed decisions in other jurisdictions and also noted that sorority costs were not considered to be qualified higher education expenses for the use of I.R.C. §529 plan funds. The Magistrate concluded, “Accordingly, the Court finds that sorority costs are not college expenses and, unless expressly agreed to by divorced parties in a stipulation, those parents have no responsibility to contribute their pro rata share towards such costs as college expenses.”
The Magistrate then considered whether the sorority could be considered an extracurricular activity the expenses of which were to be shared by the parents. In that regard, their agreement provided:
Simultaneously with the execution of this Agreement, the Husband shall be responsible for 65% and the Wife shall be responsible for 35% of the cost of any extracurricular expenses, including gymnastics, tutoring, financial aid applications, college planning activities, college preparation activities, college applications and fees for examinations for College admission and placement, . . . . [emphasis added]
Magistrate Toscano understood “including” to mean “including but not limited to.” “Including” was not used as a limiting term. Rather “including” was an illustrative, expansive, enlarging, non-exhaustive term. Magistrate Toscano noted there was precedent for this understanding. See, e.g., 10 U.S.C. § 101(f) (2023) (“includes” means “includes but is not limited to”); 11 U.S.C. § 102(3) (2023) (in rules of construction, including is not limiting); Empire Mut. Ins. Co. v. Applied Systems Dev. Corp., 121 A.D.2d 956, 960, 505 N.Y.S.2d 607 (1st Dep’t 1986) (noting contextual usage of word ‘including’ not term of limitation but rather illustrative); People v. Shafer, 74 Misc. 3d 405, 413, 160 N.Y.S.3d 817 (Ulster Cty. Ct., Dec. 21, 2021).
Therefore, here, the use of the term “including” could have resulted in the sorority expenses being recognized as extracurricular expenses to be shared. However, the Court found that, here, the parties did not intend sorority costs to be paid as extracurriculars because they limited extracurriculars to activities before high school graduation.
The parties’ 2021 divorce settlement agreement “referred to extracurricular activities through college admission and placement, but not beyond.”
Had the parties intended to include sorority costs within their extracurriculars provision, they would have included language about on-college-campus and off-college-campus activities.”
Comment: Nonetheless, “includes” has two shades of meaning. It may limit the category to only those items listed. It may also be used to express the idea that the thing in question constitutes a part only of the contents of some other thing. New York ex rel. Estate of Frank W. Woolworth v. State Tax Comm’n of N.Y., 200 A.D. 287, 289, 192 N.Y.S. 772 (3rd Dept. 1922).
There is no definitive use of the term. While the word “includes” may be deemed to be language of limitation, it may also be used as a word of enlargement or as indicating the reverse of a restrictive intention. Watertown v. Watertown, 207 Misc. 433, 443, 139 NYS 198 (Sup. Ct. Jefferson Co. 1952).
There is a clear lesson here. Do not use the term “including” without specifying whether it means “only including” or “including but not limited to.”
There is a second lesson. The parties should also specify whether they agree to share or not to share in post-high school extracurricular activities.