| Francis v Francis |
| 2010 NY Slip Op 03639 [72 AD3d 1594] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Justin W. Francis, Appellant, v Susanne Francis,Respondent. |
—[*1] Nicholas Locicero, Buffalo, Magavern Magavern Grimm LLP, fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Janice M. Rosa, J.), enteredJune 17, 2009 in a divorce action. The judgment, inter alia, determined the child supportobligations of the parties.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff father appeals from an order that, inter alia, determined the childsupport obligations of the parties and their respective shares of education expenses. We note atthe outset that, although the father appeals from the order rather than the subsequent judgment ofdivorce, in the exercise of our discretion we treat the notice of appeal as valid and deem theappeal as taken from the judgment (see CPLR 5520 [c]; Miller v Richardson, 48 AD3d1298, 1300 [2008], lv denied 11 NY3d 710 [2008]; Gordon v Gordon, 210AD2d 929 [1994]).
The father contends that Supreme Court failed to set forth the factors it considered inapplying the statutory formula to the combined parental income in excess of $80,000 and that thecombined parental income should have been capped at $100,000. We reject that contention. Thecourt did not abuse its discretion in setting a cap of $160,000 for the combined parental income,and it properly set forth the factors it considered in deviating from the $80,000 statutory cap(see Domestic Relations Law § 240 [1-b] [f]; Matter of Cassano vCassano, 85 NY2d 649, 653 [1995]; Corasanti v Corasanti, 296 AD2d 831 [2002]).
The contention of the father that the court erred in directing him to pay his pro rata share ofthe children's private school tuition lacks merit. "[A] parent is not obligated to pay for the cost of[the children's] private schooling unless special circumstances exist" (Matter of Cassano vCassano, 203 AD2d 563, 564 [1994], affd 85 NY2d 649 [1995]; see Lannen vLannen, 231 AD2d 931 [1996]). "The relevant factors that comprise special circumstancesinclude the educational background of the parents, the [children's] academic ability, and theparents' financial ability to provide the necessary funds" (Lannen, 231 AD2d [*2]at 932; see Cassano, 203 AD2d at 564). Based on thosefactors, we conclude that special circumstances exist in this case (see DomesticRelations Law § 240 [1-b] [c] [7]; cf. Cassano, 203 AD2d at 565; Lannen,231 AD2d 931 [1996]). Present—Smith, J.P., Fahey, Carni, Sconiers and Pine, JJ.