| Colucci v Colucci |
| 2008 NY Slip Op 06793 [54 AD3d 710] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Tracy Colucci, Also Known as Tracy Guadagno,Appellant, v Peter Colucci, Respondent. |
—[*1] Curtiss, Leibell, Herodes and Mole, Carmel, N.Y. (Timothy J. Curtiss of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment dated July 21, 1997,the plaintiff appeals from an order of the Supreme Court, Putnam County (O'Rourke, J.), datedAugust 16, 2007, which granted that branch of the defendant's motion which was for a downwardmodification of his obligation to pay 100% of the college education expenses for the parties'children, as provided in their stipulation of settlement dated June 10, 1997, to the extent ofreducing his obligation from 100% to 75%.
Ordered that the order is reversed, on the law, with costs, and that branch of the defendant'smotion which was for a downward modification of his obligation to pay 100% of the collegeeducation expenses for the parties' children, as provided in their stipulation of settlement datedJune 10, 1997, is denied.
The plaintiff mother and the defendant father, who have two children of their marriage, weredivorced in 1997. They entered into a stipulation of settlement, which was incorporated but notmerged into the judgment of divorce. The parties agreed in the stipulation of settlement to bebound by, and for the stipulation to comply with, the provisions of the Child Support StandardsAct (Domestic Relations Law § 240 [1-b]; Family Ct Act § 413 [1] [b]) (hereinafterthe CSSA).
The stipulation of settlement provides, under the section entitled "CHILD SUPPORT," thatthe father must pay the mother a set amount per month in basic child support, which amount wasdetermined in accordance with the CSSA. The stipulation of settlement further provides, in thechild [*2]support section, that the parties are to share on a pro ratabasis any child care expenses incurred by the mother that are necessary for her work or for schoolleading to work, as well as the costs associated with the children's extracurricular activities. Thestipulation of settlement also provides, in the child support section, that the parties are toexchange their federal income tax returns annually in order to make any necessary adjustments tothe father's basic child support obligation and to the parties' pro rata basis underlying the amountof child support that would be due under the CSSA.
Under a separate section of the stipulation of settlement entitled "COLLEGE EXPENSES,"the father agreed to be solely responsible for the children's college education expenses.
In June 2007, 10 years after the stipulation was executed and 2 months before the older childwas to start college, the father moved, inter alia, for a downward modification of his obligation topay for the children's college education expenses. Claiming that his income had decreased andthe mother's had increased since the divorce, the father asked the Supreme Court to "reallocate"the parties' respective obligations with respect to the children's college education expenses, basedon the parties' current incomes, so that he would pay 62% of the expenses, and the mother wouldpay the remainder. In opposition, the mother contended that, in accordance with the stipulation ofsettlement, the parties agreed that the father would pay 100% of the children's college educationexpenses regardless of any change in the parties' income. Concluding that there was a "change incircumstances," and purporting to take into account the best interests of the children, theSupreme Court granted that branch of the father's motion which was for a downwardmodification of his obligation to pay the children's college education expenses, to the extent ofdirecting the father to pay 75% of those expenses. The mother appeals. We reverse.
The terms of a separation agreement "incorporated but not merged into a judgment of divorceoperate as contractual obligations binding on the parties" (Matter of Gravlin v Ruppert,98 NY2d 1, 5 [2002]). Further, " '[a] matrimonial settlement is a contract subject toprinciples of contract interpretation . . . [and] a court should interpret the contract inaccordance with its plain and ordinary meaning' " (Herzfeld v Herzfeld, 50 AD3d 851, 851 [2008], quotingEdwards v Poulmentis, 307 AD2d 1051, 1052 [2003]). Where a matrimonial settlement"is clear and unambiguous on its face, the parties' intent must be construed from the four cornersof the agreement, and not from extrinsic evidence" (Herzfeld v Herzfeld, 50 AD3d 851, 852 [2008]).
Here, the parties' stipulation of settlement expressly obligates the father to pay 100% of thechildren's college education expenses, in addition to, and separate and apart from, his obligationto pay child support. Notably, the provision in the stipulation requiring the father to pay 100% ofthe children's college education expenses is set forth in a section of the stipulation separate fromthe section containing his obligation to pay child support, and the two sections do not referenceeach other in any manner. Significantly, only the section pertaining to child support containsprovisions regarding reallocation of the parties' respective obligations should there be any changein the income of either one.
Under the circumstances, it is apparent that the parties agreed that college educationexpenses would not constitute a component of their obligation to pay basic child support (seegenerally Matter of Meccico v Meccico, 76 NY2d 822, 824 [1990]; Cimons v Cimons, 53 AD3d 125[2008]; Herzfeld v Herzfeld, 50AD3d 851 [2008]; Matter ofDorcean v Longueira, 44 AD3d 770 [2007]; Tryon v Tryon, 37 AD3d 455, 457 [2007]; Regan v Regan,254 AD2d 402, 403 [1998]; cf. Romans v Romans, 203 AD2d 549 [1994]). It is alsoapparent from the stipulation of settlement that the parties intended that the father's [*3]obligation to pay 100% of the children's college education expenseswas not subject to modification based on any change in the parties' respective incomes. WhileDomestic Relations Law § 240 (1-b) (h) requires stipulations and agreements to contain aprovision that the parties were advised of the CSSA and knowingly "opted-out" of its provisions(see Maser v Maser, 226 AD2d 684, 686 [1996]), that provision specifically applies onlyto "[b]asic child support," which generally does not include college education expenses (seeDomestic Relations Law § 240 [1-b] [b] [1]; Cimons v Cimons, 53 AD3d 125 [2008]; see generally Matterof Maksimyadis v Maksimyadis, 275 AD2d 459, 461 [2000]). Under such circumstances,there is no basis for the court to interfere with the parties' contractual agreement requiring thefather to pay 100% of the children's college expenses (cf. Otero v Otero, 222 AD2d 328,329 [1995]; Romans v Romans, 203 AD2d 549, 549-550 [1994]).
The father's remaining contentions are without merit. Rivera, J.P., Lifson, Santucci andMiller, JJ., concur.