| Matter of Cricenti v Cricenti |
| 2009 NY Slip Op 02594 [60 AD3d 1052] |
| March 31, 2009 |
| Appellate Division, Second Department |
| In the Matter of Christina M. Cricenti,Appellant, v Maryann Cricenti, Respondent. |
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In a child support proceeding pursuant to Family Court Act article 4, the daughter appealsfrom an order of the Family Court, Suffolk County (Budd, J.), dated June 11, 2008, which deniedher objection to so much of an order of the same court (Buse, S.M.) dated March 14, 2008, asdismissed her application for contribution toward her college expenses from her mother, andgranted her objection to so much of the order as dismissed her application for child support onlyto the extent of remitting the matter to the Support Magistrate to issue findings of fact pursuantto Family Court Act § 439 (e) or to conduct a new hearing regarding the mothers's childsupport obligation.
Ordered that the order is affirmed, without costs or disbursements.
The petitioner's parents were divorced in 1994. They entered into a stipulation of settlement,which was incorporated into but not merged with the judgment of divorce. In the stipulation ofsettlement, they agreed to share the expense of the petitioner's college education, in a specifiedpro rata manner, as long as they both approved of the petitioner's choice of college, whichapproval was not to be unreasonably withheld. In September 2007, after the petitionermatriculated at the Fashion Institute of Technology, she commenced the instant proceedingseeking, inter alia, an order directing the respondent, her noncustodial mother, to pay her shareof the petitioner's college expenses and to provide child support. After a hearing, the FamilyCourt denied that branch of the petition by which the petitioner sought contribution by themother toward the petitioner's college expenses. The Family Court observed that the stipulationof settlement established as a condition of contribution that there would be discussion aboutwhich school the petitioner would attend. The Family Court found that the petitioner failed todemonstrate that the mother [*2]had an opportunity to expressany opinion regarding the choice of school. The Family Court remitted the matter to a SupportMagistrate to issue findings of fact pursuant to Family Court Act § 439 (e) or for a hearingon the issue of the mother's child support obligations. The petitioner appealed.
The terms of a separation agreement incorporated but not merged into a judgment of divorceoperate as contractual obligations binding on the parties (see Colucci v Colucci, 54AD3d 710, 712 [2008]). A matrimonial settlement is a contract subject to principles of contractinterpretation, and a court should interpret the contract in accordance with its plain and ordinarymeaning (see id.; Herzfeld v Herzfeld, 50 AD3d 851 [2008]). "Where such anagreement is clear and unambiguous on its face, the parties' intent must be construed from thefour corners of the agreement, and not from extrinsic evidence" (id. at 851-852).
The petitioner failed to demonstrate that the mother was aware of her choice of college. Themother could neither approve of the petitioner's choice of college nor unreasonably withholdsuch approval in the absence of any awareness of the petitioner's choice in that regard. In theabsence of any evidence that the mother was aware of the petitioner's choice of college, thepetitioner failed to establish that the mother violated her obligations under the terms of theagreement to pay her share of the related expenses upon approving the petitioner's choice ofcollege or in unreasonably withholding her approval. Accordingly, the Family Court properlydenied that branch of the petition by which the petitioner sought educational expenses from themother under the express terms of the stipulation of settlement.
In light of its determination that the mother's income had not been adequately established,the Family Court providently exercised its discretion in remitting the matter to a SupportMagistrate for findings of fact pursuant to Family Court Act § 439 (e) or for adetermination of the mother's child support obligations (see Family Ct Act § 439;Matter of Viehl v Viehl, 50 AD3d 814, 816 [2008]).
The petitioner's contentions addressed to the Family Court's amended findings of fact datedJuly 24, 2008, are not properly before this court (see Ross v Food Specialties, 5 AD2d994 [1958]). Mastro, J.P., Balkin, Dickerson and Belen, JJ., concur.