| Fishbein v Fishbein |
| 2010 NY Slip Op 03406 [72 AD3d 1021] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Judith Ann Fishbein, Now Known as Judith Ann Larkin,Respondent, v Peter Michael Fishbein, Appellant. |
—[*1] Coffman & McNichols (VanBrunt, Juzwiak & Russo, P.C., Sayville, N.Y. [Janessa M.Trotto], of counsel), for respondent.
In a matrimonial action in which the parties were divorced by judgment dated October 22,1990, the defendant appeals from an order of the Supreme Court, Suffolk County (Cohen, J.),dated March 30, 2009, which, upon a decision of the same court dated September 29, 2008,granted the plaintiff's motion for, inter alia, child support, child support arrears, collegeeducation expenses, and award of counsel fees.
Ordered that the order is affirmed, with costs.
The parties are former husband and wife who entered into a comprehensive stipulation ofsettlement in 1990 (hereinafter the 1990 agreement) which was thereafter incorporated but notmerged into a judgment of divorce. In 2003 the plaintiff moved, inter alia, to recover childsupport arrears and for an upward modification in child support. This was settled by stipulationbetween the parties which was placed upon the record in open court (hereinafter the 2003modification).
A stipulation of settlement is a contract subject to the principles of contract construction andinterpretation (see Matter of Meccico v Meccico, 76 NY2d 822 [1990]). Where theagreement's language is clear and unambiguous, the court should determine the intent of theparties based on that language without resorting to extrinsic evidence (see Matter of Kurzonv Kurzon, 246 AD2d 693 [1998]). Contrary to the defendant's contention, the SupremeCourt properly concluded that the 1990 agreement, as modified by the 2003 modification,required him to pay the sum of $1,025 in child support for the parties' youngest child for everymonth until the child was emancipated. The court also properly concluded that the defendant wasresponsible for his pro rata share, as set forth in 2003 modification, of the child's "college fees"(see generally Matter of Sebastiani vLocatelli, 11 AD3d 701 [2004]; Matter of Dzierson v Dzierson, 173 Misc 2d490 [1997]). Finally, the Supreme Court did not improvidently exercise its discretion inawarding counsel fees to the plaintiff (see Domestic Relations Law § 238).
The plaintiff's contention that this appeal had been rendered academic is without [*2]merit (cf.Samuel v Samuel, 69 AD3d 835 [2010]). Skelos, J.P., Santucci, Lott and Sgroi, JJ.,concur.