College Fund 4.jpgIn last week’s blog, I discussed 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.”

On October 18, 2012, the Appellate Division, Third Department in Cranston v. Horton, affirmed the determination of Ulster County Family Court Judge Marianne O. Mizel to uphold a Support Magistrate’s order that each parent contribute 33% towards the reasonable educational expenses of their unemancipated children.

The Family Court had applied the parties’ 2007 surviving divorce settlement agreement requirement that each party “shall assist with the children’s reasonable college educational expenses according to their relative means and abilities at the time of attendance.”

Contrary to the father’s suggestion, the equal contribution level fixed by Family Court does not conflict with this provision.

In another part of the lower court decision, the father’s application for a reduction in his child support obligation was granted based upon a reduction in his reduced adjusted gross income from $98,000 to $63,000.

Justice Dollinger’s analysis would look to a variety of factors to assess the “relative means” of the parties. With how much is each parent left after considering their obligations. Here, the father had a child support obligation (apparently reduced in Cranston to $21,000), the maintenance obligation (unspecified), and the unspecified cost of student and other loans of one of the parties’ four children.

The Appellate Division concluded that the father’s income still far exceeded that of the mother (more than $23,000 at the time of the parties’ 2007 agreement). Thus, the father was in no position to claim an injustice based upon equal contributions by the parties to their children’s educational expenses. The court gave no credence to the father’s contention that the Family Court impermissibly rewrote the parties’ agreement in affirming the Support Magistrate’s determination regarding educational expenses.

Cranston is just the most recent in a never-ending line of cases in which the court was asked to apply a standard the parties created, and could have defined for themselves but did not.

Justice Dollinger’s decision in L.L. v. R.L is remarkable, if not unique in providing the parties with a formula to resolve their issue as it will continue to arise in the future.

However, the parents in Cranston, have no such guidance, unless we are to assume that in all future years, each parent will pay one third of college expenses. Does that blanket holding reflect the “relative means” of the parties when they have two or more children in college at one time or if either of their incomes, or expenses, change.

It’s common, if not easy to settle a divorce by agreeing to determine the college expense responsibility at a later time. However, these recent cases suggest that divorcing parents would be wise to reach specific guidelines, if not a precise formula by which their future income and assets will be assessed to determine both the relative contrbutions of the parents as well as their share of the total cost.

Dana M. Loiacono, Esq., of Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, of Newburgh, represented the father. Joshua N. Koplovitz, Esq., of the Pro Bono Appeals Program of Albany represented the mother.