| Matter of Heinlein v Kuzemka |
| 2008 NY Slip Op 02064 [49 AD3d 996] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Susan A. Heinlein, Respondent, v Jon K. Kuzemka,Appellant. |
—[*1] Lauren S. Cohen, Binghamton, for respondent.
Peters, J.P. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredAugust 30, 2006, which, among other things, partially granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 4, for modification of a prior child support order.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) have two sons(born in 1985 and 1988). Pursuant to a separation agreement which was incorporated, but notmerged, into their judgment of divorce, the parties agreed to contribute to the children's collegeexpenses, provided that their then-financial circumstances permitted them to do so and that bothparents "approve of the educational institution, course of study and living arrangements." InMarch 2001, an order of support was entered which modified the father's child support obligationand otherwise left the provisions of the separation agreement unchanged. In the fall of 2003,having accumulated $75,000 in scholarship funds, the elder son began attending RensselaerPolytechnic Institute (hereinafter RPI). In March 2006, the mother commenced the instantproceedings seeking a modification of the prior order of support and alleging a violation of thesupport order. Specifically, she alleged an increase in expenses as a result of the children'scollege costs, as well as the father's failure to contribute to such expenses as agreed to in theseparation agreement.[*2]
Following a hearing on the petitions, wherein a documentsetting forth the children's college expenses was admitted into evidence without objection, theSupport Magistrate dismissed the mother's violation petition and modified the prior support orderto the extent that support payments for the elder son would cease upon his attainment of the ageof 21. Thereafter, the mother filed written objections to the Support Magistrate's orders, to whichthe father responded. Upon review, Family Court partially granted the mother's objections,ordering the father to reimburse the mother for 61%, or approximately $35,000, of the elder son'saccumulated college expenses. The father appeals.
It is by now well settled that a separation agreement that is incorporated, but not merged, intoa divorce degree is a legally binding independent contract between the parties which must beinterpreted so as to give effect to the parties' intentions (see Mills v Mills, 22 AD3d 1003, 1003 [2005]; Matter of Antesv Miller, 304 AD2d 892, 893 [2003]). Here, the separation agreement clearly evinced theparties' intent to provide their children with a college education and to contribute to theassociated costs. The father seeks relief from this obligation, asserting that since the mother didnot consult him regarding his son's attendance at RPI, he did not approve of that school or any ofthe child's college-related expenses. His protests are unavailing since, while aware of the child'saspirations to attend RPI, he failed to make any inquiries of the mother and consistently declinedto accept registered mail sent by her (see Matter of Harp v McCann, 97 AD2d 868, 869[1983]). Moreover, once the father became aware that his son was attending RPI, he took noaction to object to the choice of school or apply to be relieved of his obligations, thus"signif[ying] his acquiescence and implicit approval of [the] decision" (Matter of Hartle vCobane, 228 AD2d 756, 757 [1996]; see Matter of Harp v McCann, 97 AD2d at 869;see also Regan v Regan, 254 AD2d 402, 403 [1998]; Lennard v Lennard, 97AD2d 713, 714 [1983]). Fully acknowledging the acrimonious nature of the parties' relationshipfollowing their divorce and recognizing that the mother "should have made a greater effort toconfer with [the father] on this matter, the fact remains that the parties' separation agreement. . . contemplates both parties contributing to the children's college expenses inaccordance with their respective abilities" (Matter of Wolk v Saidel, 135 AD2d 987, 988[1987]). As such, the father cannot avoid his contractual obligations by ignoring the mother'swritten communications and remaining silent in the face of his admitted knowledge that his sonwas attending RPI. According great deference to Family Court's evaluation of the evidence andfactual findings (see Matter of Seibert v Briggs, 152 AD2d 900, 902 [1989]), we find thatthe court properly held the father responsible for the child's greatly reduced college tuition andrelated expenses.
The father also contends that Family Court required him to pay 61% of the children's collegeexpenses without determining whether his then-existing financial circumstances enabled him todo so. Initially, we note that "[b]y entering into the agreement containing the provisionconcerning college tuition, [the father] effectively consented to having the cost of a collegeeducation considered as a part of his support obligation [and] [t]herefore, he was subject to thestatutory presumption that he had sufficient means to provide support" (Matter of Harp vMcCann, 97 AD2d at 869; see Family Ct Act § 437; Matter of Powers vPowers, 86 NY2d 63, 70 [1995]). Considering that the father, who earns slightly less than$50,000 annually, owns a luxury motorcycle in addition to his standard vehicle and resides in ahome owned by his paramour in which he pays a modest $100 per week in rent, inclusive of allutilities, we find that he is financially able to contribute to college expenses (see Matter ofFrowein v Murray, 298 AD2d 647, 648 [2002]).
Carpinello, Rose, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.