| Washington v Washington |
| 2008 NY Slip Op 08478 [56 AD3d 463] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Anne B. Washington, Respondent, v Barry A. Washington,Appellant. |
—[*1] Amy S. Nord, Valley Stream, N.Y., for respondent.
In an action to recover monies allegedly owed to the plaintiff pursuant to a marital settlementagreement between the parties dated February 26, 1990, the defendant appeals from a judgmentof the Supreme Court, Queens County (Leviss, J.), entered June 12, 2007, which, after a nonjurytrial, is in favor of the plaintiff and against him in the principal sum of $46,373.31.
Ordered that the judgment is reversed, on the law, without costs or disbursements, and thecomplaint is dismissed.
In reviewing a determination made after a nonjury trial, this Court's power is as broad as thatof the trial court, and it may render the judgment it finds warranted by the facts, taking intoaccount that in a close case the trial judge had the advantage of seeing and hearing the witnesses(see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492,499 [1983]; Narendra v Thieriot, 41AD3d 442, 443 [2007]).
An agreement that is incorporated, but not merged, into a judgment of divorce is alegally-binding independent contract between the parties which must be interpreted so as to giveeffect to the parties' intentions (see Matter of Gravlin v Ruppert, 98 NY2d 1, 3-7 [2002];Matter of Heinlein v Kuzemka, 49AD3d 996 [2008]). Where the contract is clear and unambiguous on its face, the intent of theparties must be [*2]gleaned from within the four corners of theinstrument (see Nichols v Nichols, 306 NY 490, 496 [1954]; Fetner v Fetner, 293AD2d 645 [2002]).
The Supreme Court erred in concluding that the plaintiff was entitled to an award of half ofthe college expenses of the parties' sons Bradley and Stephen Christopher from the defendant.With respect to educational expenses, the parties' marital settlement agreement (hereinafter theagreement) dated February 26, 1990 provided that "[a]ny expense of the children's education thatwill not be covered by the proceeds of [a certain trust] will be equally shared between thehusband and wife." It further provided that "[b]oth parties will contribute to their children'seducation at an accredited institution of higher learning in accordance with their means andabilities." The plaintiff failed to produce any evidence as to the proceeds or balance of the trustavailable to cover the children's educational expenses. No evidence was adduced concerning themeans and abilities of the parties. Accordingly, the plaintiff failed to establish a contractualentitlement to recovery of the sought-after college expenses pursuant to the terms of theagreement. Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.