JengaOn June 12, 2018, the Court of Appeals in a 5-2 decision, affirmed the ruling discussed below.

It is common in agreements, and often the case in judicial decisions, for the parent paying periodic child support to receive a credit against those payments for college room and board expenses paid by that parent. May parties agree that the credit exceed the amount allocated by the parties to the support of the particular child attending college? No, (probably) said the Appellate Division, First Department, in its April 6, 2017 decision in Keller-Goldman v. Goldman.

The parties entered into a Stipulation of Settlement and Agreement that resolved all issues surrounding their separation. As may be relevant to the court’s determination, although the parties had four unemancipated children, the agreement only provided for support for the three children for whom the wife was deemed the custodial parent (the parties were to share equal time with these three). The husband retained custody of the fourth child, but agreed to receive no support for him from the mother. The opinion noted that had the parties not negotiated the issue of child support, the mother stood to collect $5,000 per month in child support payments, pursuant to the Child Support Standards Act, a fact acknowledged by the agreement. Instead, she agreed to monthly child support payments of $2,500.

Paragraph 10.3 of the parties’ agreement provided for a graduated reduction in the father’s child support payments upon the emancipation of each of the three children. Upon the first emancipation his monthly payment would be reduced by $350 to $2,150 per month; and upon the second emancipation the payment would be reduced to $1,462 per month.

The agreement provide for a room and board credit at paragraph 10.4, immediately following the support reduction schedule:

During the period in which a Child is attending a college and residing away from the residences of the parties and [the father] is contributing towards the room and board expenses of that Child, [the father] shall be entitled to a credit against his child support obligations in an amount equal to the amount [the father] is paying for that Child’s room and board. The credit shall be allocated in equal monthly installments against [the father’s] child support payments.


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It appears that the tremendous burden placed on the Appellate Division, Second Department, to work through its caseload has often led to opinions which leave you wanting to know a little more of the facts so you can put the case into perspective.

Take the the Second Department’s May 31, 2017 decision in Fiore v. Fiore, where the lower court’s opinion was modified to increase a father’s college obligation and which determined summer camp to be the equivalent of child care.

After nine years of marriage and one child, the parties settled their divorce action by an amended agreement that was incorporated into their 2000 Judgment of Divorce. Included among the settlement’s provisions were that the father would pay $12,289 annually for basic child support; that the parents would each pay their pro rata share of unreimbursed medical expenses; and that the father would pay 58% of the cost of day care.

In 2014, the mother moved for upward modification of basic child support, and other child support-related relief, including contribution toward the child’s summer camp and college expenses. Supreme Court, Nassau County Justice Julianne T. Capetola denied the upward modification, denied summer camp expenses, and limited the father’s obligation to pay college expenses to $5,000 per semester.

On appeal, the Second Department upheld the denial of an increase in the basic child support obligation. The mother had failed to meet her burden of proving that there had been a substantial, unanticipated, and unreasonable change in circumstances resulting in a concomitant need, or that the settlement was not fair and equitable when entered into. This was the required burden as the amended stipulation of settlement was entered prior to the effective date of the 2010 amendments to Domestic Relations Law §236(B)(9)(b)(2), when the burden was lessened.


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Whether by agreement or court decree, it is common for divorced parents to be obligated to contributed to their child’s college education tuition, room and board expenses. How is that obligation computed when a child receives financial aid?

Cases have held that scholarships, grants and aid for which the student has no repayment responsibility are

OverstuffedIn contrast to its decision in Zaratzian, the subject of yesterday’s blog post, the Second Department, in Eagar v. Suchan, held the same day that a father was entitled to receive child support from a mother after their two children moved in with him.

In Eagar, the parties’ 1999 Settlement Agreement which was incorporated, but not merged into their judgment of divorce, contained separate provisions for child support and the payment of college expenses for the children. At the time, the then 7- and 5-year old sons of the parties lived with their mother.

After the parties’ two children began to reside with the father, he petitioned to terminate his child support obligation.

After a hearing, Suffolk County Support Magistrate (and former Judge) Barbara Lynaugh granted the father’s petition. She determined that the parties’ older child, then 21, was emancipated, and directed the mother to pay child support to the father for the parties’ younger child, then 19, in the sum of $344 per week. Family Court Judge Martha L. Luft denied the mother’s objections to the ruling.

The Appellate Division, Second Department affirmed. It held that Magistrate Lynaugh properly exercised her discretion when applying the Child Support Standards Act formula percentage to the combined parental income in excess of the statutory cap. “Here, the Support Magistrate properly articulated her reasons for applying the statutory percentages to parental income over the statutory cap, and her determination was not an improvident exercise of discretion.” It appears that the mother’s C.S.S.A.-adjusted annual income was approximately $105,000.00, which (applying the 17% formula) resulted in a $344.00 per week award.

The appellate court did not discuss the language of the parties’ Stipulation of Settlement, or why that language allowed for an affirmative award to the father.


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Where a divorce settlement agreement contains a SUNY cap on the parents’ obligations to contribute to college expenses, do you subtract financial aid first from the SUNY cap, or first from the total actual costs of the child who chose to attend a private college? Do you include loans in the “financial aid” formula?

In its February 20, 2014 decision in Apjohn v. Lubinski, the Third Department decided to benefit the child.

The parties’ 1994 separation agreement contained a SUNY cap provision limiting the obligations of these parents to contribute to their then 1-year-old son’s college education. Each parent’s obligation would be limited to half of the cost of tuition, room and board at a college or university that is part of the State University of New York.

The agreement further provided that the son must apply to “the said college or university” for all possible grants, scholarships and financial aid before either party would be obliged to pay any college costs. Here, the son applied for and obtained financial aid from the private college where he enrolled in September 2011. the son also received an outside scholarship.

Refusing to make any contribution, the father contended that the agreement required the son to apply to a SUNY institution for financial aid. As the son did not do so (he applied to his private college), the father argued he had no obligation to contribute anything.

The Third Department resolved the ambiguity as to whether the requirement to apply to “the said college or university” for financial aid referred to a SUNY institution or to the college attended by the son, by noting that the agreement did not require the son to attend or apply for admission at a SUNY school. (The father also did not show that it was  possible to apply to a SUNY institution for financial aid without also applying for admission.)


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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.


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