Divorce Agreementl.jpgIn its February decision in Fragin v. Fragin, the Second Department interpreted a 1995 separation agreement which survived the entry of the parties’ 1995 divorce judgment. Pursuant to that agreement, the ex-wife was obligated to contribute to the basic graduate school expenses of the parties’ unemancipated children. However, in fact and not surprisingly, at the time the children enrolled in graduate school, they were emancipated under the terms of the agreement.

The Court does not provide us with the precise language of the parties’ agreement, if any, which defined that point at which a child would be deemed emancipated. In the absence of such a provision, a child is “unemancipated” for support purposes upon reaching age 21.  It is common, however, for there to be such a defining provision in an agreement. Often, a child will be deemed unemancipated for the purposes of the agreement beyond age 21 if the child is in college. There may be a limit on that extension, however, e.g., reaching age 22 or 23.

Here, it would seem absurd for the agreement to discuss payments for graduate school if such payments were only to be for the graduate-school education of children who were unemancipated at the time of their attendance in graduate school. Most children will not be attending graduate school before their very early 20s, or before they finish college. However, on the surface, this is how the Court appears to have reconciled the provisions of the agreement: there was no obligation to pay graduate school expenses of emancipated children. Accordingly, the ex-husband’s motion to enforce the agreement and compel the ex-wife to contribute to the payment of graduate school expenses was denied.

If I have misconstrued the decision (and the agreement) or the facts, it certainly won’t be the first time, or the last, and I apologize.

Nonetheless, as a general rule, and particularly when interpreting the nuances of an agreement, it would be extremely helpful for the Court to quote the language of all the relevant provisions of the agreement being reconciled.

Another example: In its 2007 decision in Weinberger v. Frankel, the Second Department interpreted a stipulation under which a father obligated himself “to pay his pro rata share of the tuition charged by his younger child’s school, the Adolph Schreiber Hebrew Academy of Rockland. The stipulation limited the appellant’s payments to the pro rata cost of the younger child’s prior school, the Hebrew Academy of Nassau County” (this is a quote from the decision, but apparently not the stipulation as no quotation marks are provided in the decision). After the mother enrolled the child at a school not listed in the stipulation, she sought the father’s share of tuition. Did the stipulation obligate the father to pay his share of the tuition charged by the Hebrew Academy of Nassau County, or did the stipulation obligate the father to pay his share of tuition at any school, but limited to a particular dollar amount; i.e., a sum equal to his share of tuition at the current school? The Court held that naming the school(s) in the stipulation was not a limitation of the schools for which the father agreed to pay, but only a limitation of cost. The father was required to pay.

Splitting hairs? Yes; but that’s what we do. Consider the time and expense needed to resolve these matters for the parties, their counsel, and the court.  Consider the angst of the children.

One of the primary purposes of the publication of judicial decisions should be to announce the effect of certain words or conduct. In that way, we may be guided in the future. Hopefully, and particularly in this time of budget crisis increasingly facing the judiciary branch, each published decision will help to reduce future litigation.