| Bjerke v Bjerke |
| 2010 NY Slip Op 00058 [69 AD3d 1042] |
| January 7, 2010 |
| Appellate Division, Third Department |
| Jerrold H. Bjerke, Respondent, v Barbara A. Bjerke,Appellant. |
—[*1] John M. Hogan, III, Saratoga Springs, for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Scarano, J.), entered October 15,2008 in Saratoga County, which, among other things, denied the parties' cross motions forcontempt.
In August 2005, the parties placed a settlement stipulation on the record the terms of whichwere subsequently incorporated in, but not merged with, their final judgment of divorce. At thetime of the stipulation, the parties' oldest child, Thomas, was emancipated, their middle child,Carolyn, was four months from her 21st birthday, and their youngest child, Kyrsten, was 13years old. The stipulation addressed, among other things, the support obligation of plaintiff(hereinafter the father) for Kyrsten, the father's payment of Carolyn's college expenses and thedivision of marital assets. By order dated July 18, 2006, Supreme Court held, among otherthings, that Carolyn was emancipated and that child support for Kyrsten would be adjusted inDecember 2006. No appeal was taken from the July 18, 2006 order.
Soon thereafter, the parties cross-moved for various forms of relief. Defendant (hereinafterthe mother) sought, in part, an order directing an increase in child support pursuant to the parties'stipulation. She also alleged a substantial change in circumstances in that Carolyn had returnedto college on a full-time basis. The father sought relief, including an order directing the motherto return [*2]funds withdrawn in violation of the stipulation. Inopposition, the mother alleged that she had withdrawn the funds with the father's permission. InAugust 2007, Supreme Court, without conducting a hearing, rendered its decision and order onthe record. As relevant to this appeal, the court held that no payment was due with respect toCarolyn's college expenses because she had not actually attended college. The court noted thatCarolyn had forged a signature to falsely reflect her enrollment in school. Decision was withheldon the mother's motion seeking modification of the father's support obligation pending aresponse from the father's employer to the mother's subpoena seeking information regarding hisincome. In addition, the mother was ordered to return funds that she had withdrawn in violationof the parties' stipulation. A written decision and order was thereafter issued confirming thedecision previously placed on the record, prompting the mother's appeal.
According to the parties' oral stipulation, the father was paying $1,000 per month as childsupport for Kyrsten based upon his Navy income at that time. Future support would be based onthe Child Support Standards Act rate of 17% of the father's income (see DomesticRelations Law § 240 [1-b] [b] [3] [i]), to be recalculated each time he receives hissemi-annual pay raises. The parties subsequently disagreed as to whether the stipulation wasintended to cap child support at 17% of the first $80,000 of the father's income, raising an issueof contract interpretation. "A separation agreement that is incorporated into but not merged witha divorce decree is an independent contract binding on the parties unless impeached orchallenged for some cause recognized by law" (Merl v Merl, 67 NY2d 359, 362 [1986][citations omitted]). In construing the agreement, the parties' intent "must be determined inconformity with ordinary contract law; thus, any ambiguity in the agreement's terms must beresolved by determining the parties' intent at the time of contracting, either from within the fourcorners of the document, if possible, or, as a last resort, from whatever extrinsic evidence isavailable" (Cortese v Redmond, 199 AD2d 785, 786 [1993] [citations omitted]).Supreme Court deferred interpretation of the stipulation because the mother was waiting foradditional information from the Navy regarding the father's income. The determinative issue,however, is the parties' intent at the time the stipulation was entered. Moreover, the father hasalready provided evidence of his income. Accordingly, we remit to Supreme Court to determinethe parties' intent with regard to what portion, if any, of the father's income in excess of $80,000is to be included in the calculation of child support (see Matter of Mahoney v Goggins, 12 AD3d 447, 448 [2004]).
Regarding the father's obligation to pay the college expenses of Carolyn, the emancipatedchild, we agree with Supreme Court that the stipulation unambiguously obligated the father topay Carolyn's tuition, room and board so that she could attend Bemidji State University as afull-time student. We disagree, however, with the mother's contention that the father undertookan unconditional, open-ended obligation to fund his daughter's expenses without regard to heractual attendance or performance in school. That position is belied by the stipulation. Themother's counsel expressly acknowledged on the record that the father was paying Carolyn's rentso that she could attend school full time. The father submitted evidence of the school's criteriafor full-time student status and evidence that Carolyn failed to meet that criteria. At the sametime, however, the order declaring Carolyn emancipated did not necessarily forever eliminate theobligation that the father voluntarily undertook to pay Carolyn's college expenses (see Matterof Antes v Miller, 304 AD2d 892, 892-893 [2003]; Streuli v Streuli, 60 AD2d 829[1978]), as Carolyn's unemancipated status may be revived upon a proper showing (see Matter of Kendall v Fazzone, 18AD3d 908 [2005]; Matter of Bogin v Goodrich, 265 AD2d 779, 781 [1999]). Thefather paid Carolyn's expenses until it was clear that she was consistently failing, droppingclasses and not attending school full time. While the mother submitted [*3]evidence indicating that Carolyn subsequently returned to schoolfull time, we are unable to ascertain from the stipulation whether the parties intended that thefather's obligation to pay her expenses would continue indefinitely. We therefore remit toSupreme Court for a hearing to determine whether the father has failed to pay Carolyn's collegeexpenses for any period during which Carolyn actively attended college as a full-time student inaccordance with the parties' intention.
Finally, the mother's affidavit in support of her claim that she and the father orally modifiedthe stipulation to allow her to withdraw all of the funds in a certificate of deposit also raised anissue of fact sufficient to warrant a hearing.
Peters, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by deleting so much thereof as directed defendant to return$5,000 from the proceeds of a certificate of deposit and found that Carolyn has not attendedcollege full time; matter remitted to the Supreme Court for a determination as to child supportfor Kyrsten and a hearing with respect to the alleged oral modification of the parties' stipulatedsettlement regarding funds in a certificate of deposit and the full-time college attendance statusof Carolyn; and, as so modified, affirmed.