| Powers v Wilson |
| 2008 NY Slip Op 09057 [56 AD3d 642] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Raymond A. Powers, Respondent, v Catherine M. Wilson,Appellant. |
—[*1] Raymond A. Powers, Thornwood, N.Y., respondent pro se.
In a matrimonial action in which the parties were divorced by judgment entered August 29,2006, the defendant appeals, as limited by her brief, from so much of an order of the SupremeCourt, Westchester County (Sherwood, J.), dated November 15, 2007, as, inter alia, granted theplaintiff's motion, among other things, in effect, for a clarification of his obligation to support theparties' children to the extent of directing him to pay only 60% of the parties' children's collegecosts, to pay only 60% of the highest tuition charged by the State University of New York systemwith respect to those costs, and to provide support for the parties' children only up to the age of21, and denied her cross motion to compel the plaintiff to reimburse her for certain miscellaneousprecollege expenses incurred on behalf of the parties' children.
Ordered that the order is affirmed insofar as appealed from, with costs.
Prior to the entry of the judgment of divorce on August 29, 2006 the Supreme Courtconducted a hearing on the ancillary financial issues raised by the parties. Following the entry ofthe judgment of divorce, the plaintiff moved, inter alia, in effect, for a clarification of hisobligations to support the parties' children. The defendant cross-moved to compel the plaintiff toreimburse her for certain miscellaneous precollege expenses incurred on behalf of the parties'children. In an order dated November 15, 2007 the Supreme Court, inter alia, granted theplaintiff's motion to the extent of directing him to pay only 60% of the college expenses for theparties' children, to pay only 60% of the highest college tuition charged by the State University ofNew York (hereinafter SUNY) system with respect to those costs, and to provide [*2]support to the children until they reached the age of 21, and deniedthe defendant's cross motion. We affirm.
"Pursuant to Domestic Relations Law § 240 (1-b) (c) (7), the court may direct a parentto contribute to a child's education [before the child reaches the age of 21], even in the absence ofspecial circumstances or a voluntary agreement of the parties, as long as the court's discretion isnot improvidently exercised in that regard" (Matter of Holliday v Holliday, 35 AD3d 468,469 [2006]). However, a court must give due regard to the circumstances of the case and therespective parties, as well as both the best interests of the child and the requirements of justice(id. at 469; see Cohen v Cohen, 21 AD3d 341 [2005]; Matter of Calvello vCalvello, 20 AD3d 525, 527 [2005]; Saslow v Saslow, 305 AD2d 487, 488-489[2003]).
Under the circumstances of this case, the Supreme Court providently exercised its discretionin requiring the plaintiff to pay only 60% of the highest college tuition charged by the SUNYsystem (see Matter of Holliday v Holliday, 35 AD3d at 469; Balk v Rosoff, 280AD2d 568, 569 [2001]; cf. Berliner v Berliner, 33 AD3d 745, 748 [2006]; Matter ofKlein v Klein, 303 AD2d 405, 406 [2003]). Similarly, the court providently exercised itsdiscretion in requiring the plaintiff to pay for only 60% of the parties' children's overall collegeexpenses.
The defendant contends that the Supreme Court should have directed the plaintiff tocontribute to the parties' children's college expenses until they completed college. In the absenceof a voluntary agreement, a parent may not be directed to pay support or to contribute to thecollege education of a child who reaches 21 years of age (see Winski v Kane, 33 AD3d697, 698 [2006]; Gibbons v Gibbons, 31 AD3d 605, 606 [2006]). As there was novoluntary agreement in the instant case, the Supreme Court properly determined that the plaintiffwas not obligated to provide support to the parties' children once they reached the age of 21.
The Supreme Court properly denied the defendant's cross motion since the plaintiff was notobligated to reimburse the defendant for any miscellaneous precollege expenses she may haveincurred on behalf of the parties' children. Similarly, the Supreme Court providently exercised itsdiscretion in not compelling the plaintiff to pay for other miscellaneous precollege expenses thatmay be incurred by the defendant in the future.
The defendant's remaining contentions are without merit. Mastro, J.P., Skelos, Balkin andBelen, JJ., concur.