| Matter of Hammill v Mayer |
| 2009 NY Slip Op 07553 [66 AD3d 1196] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kevin J. Hammill, Appellant, v Mary K. Mayer,Respondent. (And Another Related Proceeding.) |
—[*1] Tully Rincky, P.L.L.C., Albany (Constantine DeStefano of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.),entered March 11, 2008, which, among other things, dismissed petitioner's application, in twoproceedings pursuant to Family Ct Act article 4, for a modification of a prior support order.
The parties were divorced in November 2000. The judgment of divorce incorporated but didnot merge a support order entered August 23, 2000 which codified the parties' stipulationproviding, among other things, that petitioner (hereinafter the father) "shall contribute to and payhis pro rata share (53%) of the reasonable and necessary college expenses of the children, on acase by case basis." Following various modification and violation petitions, the fathercommenced this proceeding in June 2007 seeking, among other things, to modify orders datedJune 9, 2005 and February 26, 2006 concerning his support obligation to the parties' twoyoungest children, David (born in 1986) and Michael (born in 1994). As relevant herein, thefather alleges that expenses associated with David's attendance at a private college were neitherreasonable nor necessary and any obligation to contribute to such college expenses extinguishedupon David's 21st birthday. Respondent (hereinafter the mother) cross-petitioned forreimbursement of, among other things, David's college education expenses as well as Michael'srecreational expenses.[*2]
Following a hearing, a Support Magistrate denied themother's request for reimbursement of various recreational expenses, finding such expenses to beunreasonable and unnecessary. Furthermore, although the Support Magistrate found the father tobe in willful violation of the support order in reference to, among other things, the first two yearsof David's college expenses, the Support Magistrate determined that given the absence of anexplicit agreement, the father was not obligated to contribute to college expenses beyond David's21st birthday.
Thereafter, the mother filed a written objection with respect to David's college expensesonly. Family Court sustained that objection, finding that the father was obligated to continue tocontribute his pro rata share to David's four-year college expenses, despite the fact that he hadturned 21. In addition, given the terms of the modified order of support entered upon stipulationof the parties, the court directed that the father reimburse the mother for his pro rata share ofrecreational expenses in connection with Michael's participation in sports. The father nowappeals.
Initially, the father's contention that he did not agree to contribute to the expenses of thechildren's college education amounts to an untimely challenge to the plain language of theAugust 23, 2000 order. Inasmuch as the father did not pursue an appeal from that order, he isprecluded from arguing that no agreement to pay for college expenses exists (see FamilyCt Act § 1113; Matter of Clark vClark, 61 AD3d 1274, 1275 [2009], lv denied 13 NY3d 702 [2009]; Matter of Regan v Zalucky, 56 AD3d825, 826-827 [2008]; Matter ofGroesbeck v Groesbeck, 52 AD3d 903 [2008]).
Also, we find no error in Family Court continuing the father's obligation to pay his pro ratashare of David's college expenses beyond David's 21st birthday. Although a parent is notgenerally obligated to support and pay for college expenses beyond a child's 21st birthday (see Matter of Benno v Benno, 33AD3d 1143, 1145 [2006]), here, the order embodying the parties' agreement specificallyobligates the father to contribute to college expenses. Furthermore, such obligation wasreaffirmed in the June 9, 2005 and February 24, 2006 orders, which were entered uponstipulation of the parties. Despite both parties being aware that David would turn 21 prior tocompleting college, no age limitation or restriction was placed in the stipulation (see Winski v Kane, 33 AD3d 697,698 [2006]). Accordingly, we find this interpretation of the parties' agreement appropriate(see Matter of Benno v Benno, 33 AD3d at 1145; Schonour v Johnson, 27 AD3d 1059, 1060-1061 [2006]).
To the extent that the father claims that his obligation should be limited to the cost of public,rather than private, college expenses, we agree with Family Court's finding that such assertion isunavailing inasmuch as the father waited until David's third year of attendance at a privatecollege to register such an objection (see e.g. Matter of Heinlein v Kuzemka, 49 AD3d 996, 997-998[2008]).
We do, however, find merit to the father's contention that Family Court erred in ordering himto pay his proportional share of Michael's recreational expenses inasmuch as no objection wasfiled by the mother with respect to that issue. "[A]n order from a Support Magistrate is final andFamily Court's review under Family Ct Act § 439 (e) is tantamount to appellate reviewand requires specific objections for issues to be preserved" (Matter of Renee XX. v John ZZ., 51 AD3d 1090, 1092 [2008]).Accordingly, it was improper for Family Court to review such issue sua sponte (id.).[*3]
Peters, Kavanagh, Stein and McCarthy, JJ., concur.Ordered that the order is modified, on the law, without costs, by reversing so much thereof asdirected petitioner to reimburse respondent for his pro rata share of recreational expensesincurred by the parties' minor son, Michael, and, as so modified, affirmed.