| Matter of Regan v Zalucky |
| 2008 NY Slip Op 08366 [56 AD3d 825] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Mark E. Regan, Appellant-Respondent, v TaniaZalucky, Respondent-Appellant. (And Another Related Proceeding.) |
—[*1] Cynthia Feathers, Albany, for respondent-appellant.
Spain, J. Cross appeals from an order of the Family Court of Rensselaer County (Griffin, J.),entered June 26, 2007, which, among other things, in two proceedings pursuant to Family Ct Actarticle 4, granted respondent's motion for an award of child support in accordance with theSupport Magistrate's prior orders.
The parties have been divorced since 1981 and have one child together, a daughter born in1978. In their separation agreement which was incorporated into the judgment of divorce,respondent (hereinafter the mother) was awarded sole custody and petitioner (hereinafter thefather) agreed to pay child support and, if financially able to do so, pay his daughter's collegetuition while she pursued a four-year course of study toward a baccalaureate degree. The keyissue on this appeal is the amount of the father's liability for his daughter's support and expenseswhile in college.
In 1999, after his daughter turned 21, the father commenced the first of these proceedings,seeking to modify the support provisions of the parties' agreement. The mother [*2]cross-petitioned for enforcement and, after protracted litigationinvolving numerous hearings, decisions and orders, Family Court issued an order in June 2007which is the basis of this appeal. In that order, the court, among other things, granted a motion bythe mother setting specific amounts owed by the father in accordance with his liabilityestablished in previous orders. Specifically, Family Court reiterated its previous determinationsthat the father (1) owed $1,800 in child support arrears (decided in an order dated January 11,1983), (2) was liable for the daughter's tuition at Hudson Valley Community College (hereinafterHVCC) in the amount of $3,874 (decision and order dated May 6, 2004), (3) was liable to paychild support while his daughter attended college leading to a baccalaureate degree or theequivalent as long as she was less than 24 years of age (order of May 6, 2004), and (4) wasobligated to pay for his daughter's tuition expenses at Siena College (order of May 6, 2004).Family Court then fixed the father's liability for the Siena College tuition and related charges at$13,920 per year and awarded interest at 9% per annum on each of the foregoing obligations. Thefather appeals and the mother cross-appeals from Family Court's June 2007 order.
Turning first to the father's arguments on appeal, we note that they are, in almost everyinstance, barred by his failure to pursue an appeal from one of Family Court's aforementionedearlier orders. Indeed, the heart of the father's arguments goes to his alleged inability to afford tocontribute to his daughter's higher education and continued need for support, yet his liability inthat regard was resolved by a Support Magistrate in November 2000 and that decision wasexpressly affirmed by Family Court's May 6, 2004 order. That May 6, 2004 order clearly advisedthe parties that any appeal from that order must be taken within 30 days (see Family CtAct § 1113), and the father's failure to pursue an appeal of that order precludes his attemptto raise those issues in the context of the current appeal (see Matter of Groesbeck v Groesbeck, 52 AD3d 903 [2008]; Matter of Sales v Brozzo, 3 AD3d807, 807-808 [2004], lv denied 2 NY3d 706 [2004]). Accordingly, we will notrevisit the father's liability or address other challenges related to Family Court's May 6, 2004order.[FN1][*3]
The only remaining argument raised by the father is hisobjection to the interest imposed by Family Court on the monetary obligations established. Oncea money judgment has been ordered and entered, interest accrues until the judgment has beenpaid (see Family Ct Act § 454 [1]; § 460 [1]; CPLR 5003). Further,prejudgment interest can be ordered only after a finding of a willful disregard of a lawful courtsupport order (see Family Ct Act § 460 [1]; Matter of Kaltwasser v Kearns,235 AD2d 738, 740 [1997]).
Here, despite the statutory mandate directing that a money judgment shall be ordered whenany amount of child support arrears are established (see Family Ct Act § 454 [2][a]; Matter of Kaltwasser v Kearns, 235 AD2d at 740), on this record it appears that nomoney judgment has been ordered or entered.[FN2]In addition, it does not appear that Family Court made any express finding of willfulness beforeimposing prejudgment interest. Although a conscious disregard of the father's support obligationmight have been sufficiently established with respect to some of the obligations at issue, we findno record evidence that willfulness was ever alleged or determined. Absent such a determination,prejudgment interest was improperly imposed (see Matter of Kaltwasser v Kearns, 235AD2d at 740).
Turning to the mother's cross appeal, we are persuaded that some adjustments may benecessary to the monetary amounts fixed by Family Court in its June 2007 decision and orderpertaining to the father's obligation for tuition expenses between September 1999 and December2001, and to the extent he might be liable for child support during the fall semester (thedaughter's ninth and final undergraduate semester) of 2001.Pursuant to a decision and order of Family Court dated May 25, 2004, which specifically calledfor submissions from the mother calculating child support and tuition arrears due in accordancewith the court's May 6, 2004 decision, the mother submitted bills indicating that the daughterattended five semesters at Siena College—as well as several summer courses at HVCC,Siena College and the University at Albany—to complete her baccalaureate degree. Inaddition, the bills submitted indicate that tuition expenses increased over the semesters attended,that certain apparently mandatory fees were assessed and that during each semester the daughterreceived tuition reductions through Siena College grants and the New York Tuition AssistanceProgram.
The mother's submissions and the father's affidavit in response are insufficient for us todetermine whether the extra course work was necessary and, thus, whether it should be [*4]considered part of the four-year course of study that the fatheragreed to pay for in the parties' separation agreement. We therefore remit the matter to FamilyCourt to ascertain: (1) whether the father is liable for tuition expenses for the fifth semester ofstudy at Siena College; (2) whether the father is liable for the expense of courses taken in thesummers of 2000 and 2001; (3) what, if any, college fees the father is liable to pay in addition totuition; (4) what reductions should be made to the father's obligation to reflect grants andfinancial entitlements obtained; (5) whether the father is liable for child support paymentsbetween June 2001 and December 2001 by virtue of the fact that the daughter did not graduateuntil January 2002; and (6) what interest, if any, shall be applied to the final calculated amounts.Family Court shall then order that a money judgment be entered reflecting the total amount owedby the father (see Family Ct Act § 454 [2] [a]; § 460 [1]).
As a final matter, we agree with the mother that whatever amount Family Court establishesfor tuition costs during the daughter's attendance at Siena College, that amount should not bereduced by the $3,874 previously awarded for tuition expenses. The $3,874 reflects the cost ofthe daughter's four semesters of study at HVCC, an expense for which the father's liability hadpreviously been established.
Mercure, J.P., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the order ismodified, on the facts, without costs, by reversing so much thereof as fixed the award for thedaughter's college tuition expenses; matter remitted to the Family Court of Rensselaer County forfurther proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: The father objects to FamilyCourt's consideration of submissions containing evidence that was not considered by the SupportMagistrate in its 1999 and 2000 decisions. This challenge is best characterized as an untimelychallenge to an order of Family Court dated May 25, 2005, which specifically directed themother to submit proof of college expenses, especially since Family Court apparently did notconsider that evidence in its June 2007 decision. However, in light of our decision herein to remitthis matter for consideration of such submissions as well as any necessary further evidence(see infra), we note that no merit exists to the father's argument that the proof in thismatter was closed as of September 8, 1999. The daughter had, at that point, just commenced herstudies at Siena College and, thus, consideration of proof of actual subsequent costs of hereducation is both appropriate and necessary. We also reject the father's contention that Family CtAct § 439 (e) precludes Family Court—when it has concluded that the findings ofthe Support Magistrate are insufficient to render a final determination—from consideringevidence in the form of affidavits and other submissions without holding a hearing. Where thecourt is endeavoring to fix amounts due on liability already established, and submissions aremade on notice and with opportunity to respond, we find nothing to preclude Family Court,where possible, from rendering a final order based upon submissions. On remittal here, it will befor the court to ascertain whether issues remain that require a hearing—be it before theSupport Magistrate or the court—or whether the calculations can be made based onsubmissions by the parties.
Footnote 2: It is unclear from the recordwhether Family Court's 1983 decision and order fixing $1,800 in support arrears was everreduced to a money judgment (see Family Ct Act § 454 [2] [a]). If so, on remittal,Family Court should assess interest accordingly (see CPLR 5003).