| Kennedy v Kennedy |
| 2009 NY Slip Op 03869 [62 AD3d 755] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Thomas Kennedy, Appellant, v Jacqueline Kennedy,Respondent. |
—[*1] Jacqueline A. Hoey, named herein as Jacqueline Kennedy, Dix Hills, N.Y., respondent prose.
In a matrimonial action in which the parties were divorced by judgment entered March 16,1998, the father appeals, as limited by his brief, from stated portions of an order of the SupremeCourt, Nassau County (Stack, J.), dated December 14, 2007, which, inter alia, after a hearing,granted the mother's motion to hold him in contempt for failure to comply with a prior order ofthe same court (Spinola, J.), dated July 19, 2006, and committed him to a term of incarcerationfor a period of 30 days unless he purged himself of his contempt by paying the sum of $25,000 tothe mother, and granted the mother' s separate motion for an upward modification of his childsupport obligation from the sum of $2,058 per month to the sum of $3,535.50 per month, and foran award of 50% of certain educational expenses for the parties' two younger children.
Ordered that the order is modified, on the law and the facts, by deleting the provisionsthereof granting the mother's motion to hold the father in contempt, and committing the father toa term of incarceration for a period of 30 days unless he purged himself of his contempt bypaying the sum of $25,000 to the mother, and substituting therefor a provision denying thatmotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Nassau County, for adetermination of the amount owed by the father for the college tuition of the parties' two olderchildren, Thomas and Deidre, in accordance herewith.
The parties were divorced in 1998, and have four children. The instant appeal is from anorder which granted the mother's motion to hold the father in contempt for failing to comply witha prior order requiring him to contribute to the college tuition of the parties' two older children,[*2]Thomas and Deidre, and granted her separate motion forupward modification of child support and for an award of certain educational expenses for theparties' two younger children.
With respect to college tuition, absent a voluntary agreement, a parent may not be directed tocontribute to the college education of a child who has reached the age of 21 years (see Cimons v Cimons, 53 AD3d125, 134 [2008]). The parties' eldest child, Thomas, attained the age of 21 years of age inMarch 2007 while the motion to hold the father in contempt was pending. The parties enteredinto a stipulation to sell property to pay for Thomas's first two years of college; therefore, onlytuition for a portion of his third year of college, the 2006-2007 academic year, until his 21stbirthday, is in issue. Both Thomas and Deidre received grants and/or scholarships, which mustbe subtracted from tuition to determine the parents' respective obligations (see Matter of Kent v Kent, 29 AD3d123, 134 [2006]; Wacholder v Wacholder, 188 AD2d 130, 135 [1993];Haimowitz v Gerber, 153 AD2d 879 [1989]). Further, the mother acknowledges onappeal that the father contributed to Deidre's college education. On this record, the father'sunpaid obligations, if any, cannot be determined. Therefore, the mother's motion to hold him incontempt for failure to satisfy those obligations should have been denied, and the matter must beremitted to the Supreme Court, Nassau County, to calculate what, if anything, is due and owing.
However, the mother established a basis for upward modification of child support basedupon the increased income of the father and the increased needs of the children. The courtapplied the formula set forth in the Child Support Standards Act (hereinafter CSSA formula)(see Family Court Act § 413), to total parental income in excess of $80,000, in aprior order dated April 1, 2002, which stated that it was appropriate to apply the CSSA formulato entire combined parental income, "based upon the standard of living the children would haveenjoyed if the parties remained together." In the order appealed from, the court set forth itsreasons in detail, thus complying with the requirements of Matter of Cassano v Cassano(85 NY2d 649 [1995]).
There is no basis to set aside the additional award of 50% of the educational expenses of thetwo younger children. That award was properly made in addition to basic child support, in thediscretion of the trial court (see Cimonsv Cimons, 53 AD3d 125, 131 [2008]). Mastro, J.P., Dillon, Leventhal and Chambers,JJ., concur.