Two decisions within the last 10 days confirm the need for agreements relating to support to be in (an acknowledged) writing, and then incorporated in a court order.

In one, the Second Department affirmed the award of maintenance arrears without a hearing despite the claimed reduction of maintenance under an oral modification of the parties’ separation agreement. In the second, Albany County Family Court Judge W. Dennis Duggan directed a father to pay 71% of his older son’s private middle school expense, despite the mother’s conceded agreement to pay the full tuition.

In its January 30, 2103 decision in Parker v. Navarra, the Second Department affirmed the award of maintenance arrears by Dutchess County Supreme Court Justice James V. Brands. The ex-husband alleged that he and his ex-wife had orally modified the maintenance provisions of their separation agreement and, alternatively, that the ex-wife should be equitably estopped from enforcing the maintenance provisions of the separation agreement. The ex-husband had requested an evidentiary hearing so that he could present the testimony of witnesses on those issues. Justice Brands denied the request for an evidentiary hearing, awarding arrears on the basis of the parties’ submissions.

The Second Department affirmed, noting that the ex-husband failed to make a showing sufficient to entitle him to a hearing on this issue:

Where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. The defendant did not demonstrate that the plaintiff’s acceptance of reduced monthly maintenance payments was unequivocally referable to an alleged oral modification by, for example, demonstrating that consideration was given in exchange for the plaintiff’s alleged oral agreement to accept reduced maintenance payments.

Moreover, to establish a defense of equitable estoppel, the ex-husband was required to have shown that the ex-wife’s conduct induced his significant and substantial reliance upon an oral modification. Again, the ex-husband was required to have shown that the conduct relied upon to establish estoppel was not otherwise  compatible with the agreement as written.

Here, the parties’ separation agreement contained a clause providing that any waiver of strict enforcement of a provision of the agreement did not constitute a waiver of the party’s right “to strictly enforce the provision waived at a later time.” The ex-wife’s acceptance of the reduced maintenance payments was consistent with that provision. Estoppel was not an available defense.

In the second decision, in Kristina Lynn B. v. Joseph T.M. (2013 WL 310247, N.Y.L.J. 2/1/2013), the divorced parties were parents of two children, ages 10 and 12. Last year, the mother switched her oldest son, then in sixth grade, from a local public school to Christian Brothers Academy (CBA) for reasons related to the child’s emotional circumstances, the learning environment and bullying issues at the public school. The mother sought a tuition contribution from the father pursuant to FCA § 413(1)(c)(7).

The mother conceded that she had agreed to pay the full tuition. However, in his January 24, 2013 decision, Judge Duggan, denying the father’s objections to findings of the Support Magistrate, held that that agreement actually enhanced the mother’s claim and provided no defense for the father.

The Court held that the father’s consent to his son attending private school constituted an admission on his part that the selected private school was the best educational setting for his son. However, because “Family Court has no authority to enforce contracts,” the mother’s agreement was not relevant.

The interpretation of an oral contract between the parties or imposing equitable relief is beyond this Court’s authority.

Moreover, Judge Duggan noted, any agreement beyond the first year might be unenforceable as such an agreement to be enforceable must be in writing as required by the statute of frauds (GOL § 5–701).  Moreover, Judge Duggan theorized, in an effort by the father to enforce the oral agreement in a court of proper jurisdiction, the mother could have argued that the father’s acquiescence in the child’s enrollment in the 7th grade at the private school might be deemed a renewal of the agreement for which the father is estopped from registering an objection.

Certainly, Judge Duggan found the child’s need to change schools compelling. The Magistrate’s found that the child had been diagnosed with an auditory processing disorder in 2009 and had been suffering from a depression and other emotional difficulties which has required treatment with increasing dosages since 2009. The Magistrate also found that since the child’s transfer to private school, he has been thriving and his emotional state has improved resulting in a decrease in his medication. (Judge Duggan also noted that the father’s income increased by 41% or $44,600 since the Judgment of Divorce issued in 2007.)

Any object to the tuition cost at the particular school was also unavailable; the cost was not disproportionate to the benefits supplied when compared with the child’s former public school or some other private school. Tuitions in the Capital District for 2012–2013 ranged from about $4,500 to $29,000 per year, and the tuition that the parents were actually paying ($5,600) was in line with most parish elementary schools.

Regardless of where the tuition falls in the realm of local private schools, the parents agreed to send their son to this particular school after they each had an opportunity to visit the school. Also, there was a year’s worth of academic performance to prove that the child is thriving there.

Finally, Judge Duggan noted that there is no statutory requirement that educational expenses (as distinguish from health and child care) be divided in the same ratio as the parents’ incomes bear to each other. The language of FCA § 413(1)(c)(7) does not command any formula with respect to apportionment of private school tuition (to the same effect, see D.R.L. §240[1-b][c][7]). Nonetheless, Judge Duggan affirmed the Magistrate’s finding that that ratio was appropriate in this instance.

In Parker, William J. Larkin III, Esq., of Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, of Newburgh, N.Y. represented the father; Terry D. Horner, Esq., of Poughkeepsie, represented the mother.

In Kristina Lynn B., Michael P. Friedman, Esq., represented the mother; Stephen J. Waite, Esq., represented the father.

For other decisions in this area, see my blog post of May 29, 2012.