| Matter of Aulicino v Kaiser |
| 2007 NY Slip Op 07798 [44 AD3d 1140] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Nicole J. Aulicino, Respondent, v Christopher G.Kaiser, Appellant. |
—[*1] Steven H. Klein, Kingston, for respondent.
Mercure, J. Appeal from an order of the Family Court of Ulster County (Mizel, J.), enteredJune 28, 2006, which, among other things, in a proceeding pursuant to Family Ct Act article 4,partially denied respondent's objections to an order of support.
The parties are the parents of a son, born in 1992. Petitioner seeks a pro rata contributionfrom respondent toward parochial school education for the child. Following a hearing, a SupportMagistrate rejected respondent's contention that he had not consented to placement of the child ina parochial school and ordered respondent to pay a portion of the child's educational expenses.Respondent filed objections and Family Court subsequently affirmed the Support Magistrate'sfinding that the parties had agreed that the child should attend parochial school. The courtremanded the matter to the Support Magistrate solely for the purpose of determining the properamount of respondent's pro rata share of tuition. Respondent appeals and we now affirm.
Respondent asserts that Family Court erred in directing him to pay private school costsbecause, he maintains, there was no evidence presented at the hearing that such an award isappropriate. Family Court may award "private secondary school expenses . . . asjustice requires" (Matter of Wen v Wen, 304 AD2d 897, 898 [2003]; see FamilyCt Act § 413 [1] [c] [7]). In [*2]determining whether anaward of expenses is warranted, " 'the court must consider,' " among other things, " 'thecircumstances of the case, the circumstances of the respective parties, [and] the best interests ofthe child[ ]' " (Allen L. v Myrna L., 224 AD2d 495, 496 [1996], quoting Manno vManno, 196 AD2d 488, 491 [1993]; see Matter of Wen v Wen, 304 AD2d at 898;Fruchter v Fruchter, 288 AD2d 942, 943 [2001]).
Here, respondent's contention that he never agreed to private schooling is belied by theevidence submitted at the hearing that he enrolled the child in parochial school for two yearsduring the period that he had custody of the child. While respondent thereafter enrolled the childin public school for one year, the child's school records demonstrated that his academicperformance suffered and unexcused absences increased during that period. Finally, there was noevidence or claim that respondent has experienced a reduction in income such that he is nolonger able to afford parochial school tuition (cf. Carr v Carr, 291 AD2d 672, 675-676[2002]). Under the circumstances and considering the best interests of the child, there was asound and substantial basis for the award of educational expenses and we will not disturb FamilyCourt's determination in that regard (see Matter of Wen v Wen, 304 AD2d at 898;Llamas v Llamas, 301 AD2d 369, 369 [2003]).
Cardona, P.J., Crew III, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,without costs.