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The fact that a father set his daughter up with her own apartment when not away at college could not be used by the father as a basis to discontinue making child support payments to the mother.

Such was the holding in Trepel v. Trepel, a July 12, 2013 decision New York County Supreme Court Justice Lori S. Sattler.

At its heart, this decision was based upon the language of the parties’ surviving divorce stipulation of settlement. Under that stipulation, emancipation for child support purposes did include a change of full-time residence away from the Mother. Under the stipulation,  emancipation  included:

[The daughter’s] residing full-time away from the home of the Mother upon and after her 18th birthday, except that residence at boarding school, college or graduate school, or temporarily during summer camp or other organized summer program, shall not be deemed an Emancipation. The period, if any, from [the daughter’s] return to residence in the home of the Mother until the earliest of any other emancipation event shall be deemed a period prior to Emancipation for all purposes under this Agreement.

The father claimed that his daughter, who turned 18 in April, 2012, was emancipated under this clause as of November, 2012.

On an application by the mother to compel the father to continue paying child support, the father submitted his daughter’s affidavit. According to the daughter, in October, 2012 the mother had told her that she was going to move to Philadelphia to live with her boyfriend, which the mother did in November, 2012. The father then found an apartment for his daughter, sending her pictures of it while away at school at Emory College in Atlanta. The daughter signed a lease in November, 2012 and moved in over Christmas break from school after she and her father purchased furniture and household supplies.Continue Reading Child Support Continues: Full-Time College Student With Own Apartment When Not At School Does Not Reside "Full-Time Away From the Home of the Mother"

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…

College Fund 2.jpg“It depends on what the meaning of the word ‘is’ is.” Bill Clinton, August 17, 1998

“What does “means” mean?” Justice Richard A. Dollinger, June 22, 2012

By statute, a court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties. Under the Child Support Standards Act (D.R.L. 240[1-b][c][7] and F.C.A. 413[c][7]) the court may award educational expenses:

Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate.

In my May 9, 2012 blog, I discussed the April 24, 2012 decision in Tishman v. Bogatin, in which the Appellate Division, First Department, held that a parent’s contribution to a child’s college education would not necessarily be limited to a portion of the expense to attend a campus within the State University of New York system: the “SUNY cap.” In making a decision, there is no burden placed on a parent to show that the child’s needs cannot be met adequately at a SUNY college. “Whether to impose a SUNY cap is to be determined on a case-by-case basis, considering the parties’ means and the child’s educational needs.”

In its July 25, 2012 decision in Lynn v Kroenung, the Second Department reaffirmed that unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory. Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child’s college education is “dependent upon the exercise of the court’s discretion, and an award will be made only “as justice requires.”

In L.L. v. R.L., Monroe County Supreme Court Justice Richard A. Dollinger was compelled to determine what “means” meant in a couple’s separation agreement. That agreement provided that the parents would finance the children’s college education “according to their respective means at the time the child attends college, after grants and scholarships have been taken into consideration.”

In 2011, the parties’ oldest son applied, was accepted, and enrolled at Penn State (Harrisburg). Before he left for school, the mother moved for an allocation of the college expenses. In a prior decision, Justice Dollinger reserved this issue. When the couple’s second son recently applied to Hofstra (stated cost $33,000 annually), the mother sought an allocation of those expenses as well.

Justice Dollinger clarified the issue he would be deciding:

This Court is not deciding what the parents should contribute to their children’s college education expenses. The agreement clearly indicates that both parents would contribute something if they had the means to do so. The only issues before the court are questions of contract interpretation and contractual rights: what the parents agreed they would contribute, what obligation may be enforced against either parent under the agreement, and whether either party has, to date, breached their obligations thereunder.Continue Reading The Divorced Parent's Obligation to Pay for College: It Depends What "Means" Means

College Fund 3.jpgIt is not uncommon for divorce settlement agreements to limit a parent’s contribution to a child’s college education to a portion of the expense to attend a campus within the State University of New York system. This is known as the “SUNY cap.”

A scholarly October, 2011 decision of New York County Supreme Court Justice Matthew F. Cooper tackled head-on the assumption that a court would not impose on a parent a share of the expenses of a private college education.

Pamela T. v. Marc B., involved the parents of 16- and 18-year old sons. The older boy, a child with “moderate emotional difficulty,” was a freshman at Syracuse University intending to study computer engineering and computer graphics. He was a graduate of a selective public Manhattan high school. The decision resolved the father’s objection to paying more than his share of a SUNY education.

A SUNY education would cost approximately $18,000 per year. Syracuse University, on the other hand, costs three times that amount, some $53,000 per year.

Both parents were lawyers, with private college and law school backgrounds. Each parent earned just over $100,000 per year. The mother had some $1,230,000 in savings and retirement accounts; the father $580,000.

Justice Cooper directed the father to bear 40% of the costs of that Syracuse University education. There is no SUNY cap mandated by New York law. The thrust of Justice Cooper’s decision was that:

the SUNY cap–to the extent that it stands for the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college–is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.

Continue Reading Divorced Parents may be Liable to Provide Children with a Private College Education

College Fund 1.jpgAugust is off-to-college month. For divorced parents, the joys and sorrows of a child leaving the nest are often compounded by the parents’ disagreement over their division of college expenses.

Last Spring’s decision of the Second Department in Yorke v. Yorke provides guidance.  The parties are the parents of a child who entered college beginning in the Fall 2007 semester.  By two 2007 orders, the father was directed to pay 83% of the college tuition for the subject child prior to March 2009, and 82% of the tuition thereafter.

Those orders provided that the father was not responsible for contributing towards the child’s room and board at college.  This 2011 opinion did not discuss why room and board had been excluded, or the basis for the prospective (2009) change in the allocated percentages.

Instead, this 2010 Family Court, Orange County, proceeding involved only the calculation of the father’s  share of tuition. At the heart of the dispute was the effect of the child’s financial aid package, both as it reduced the tuition expense, but also as it was required to be spread over the costs for room and board.Continue Reading College Financial Aid and Calculating the Divorced Parent's Pro Rata Obligation for Tuition

square peg1.jpgEntering open-court oral stipulations of settlement to a divorce action is treacherous.  It’s easy to miss something or be imprecise in language.

However, striking the deal while the iron is hot is a necessary part of matrimonial litigation.  Letting the parties walk out of the courthouse without putting the day’s agreement “on the record” may cost the parties their deal.  Emotions, particularly in divorce cases, often cause second (and hundredth) thoughts on settlement provisions.  Giving friends and family one more opportunity for input may likely undermine the day’s efforts.

However, there are reasons that the typical written settlement stipulation consumes scores of pages. The boilerplate and legalese so offensive to the public is the necessary consequence of the thousands of decisions which interpret the words found in or missing from decades of previous settlements or otherwise requiring attention in any final agreement.  Moreover, without reflecting on the written word, it’s easy just to miss things.

Take the recent Second Department decision in Zuchowski v. Zuchowski.  The parties’ oral in-court stipulation announced that “all joint bank accounts have been split to the mutual satisfaction of the parties and here and forward each party shall keep any bank accounts in their respective names . . .”Continue Reading The Nature of 529 Education Savings Plans Should Not be Disregarded Under the Guise of Divorce Stipulation Interpretation