| Matter of Yorke v Yorke |
| 2011 NY Slip Op 03255 [83 AD3d 951] |
| April 19, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kathleen M. Yorke, Appellant, v DennisN. Yorke, Respondent. |
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In a child support proceeding pursuant to Family Court Act article 4, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Orange County (Woods, J.),dated March 29, 2010, as, upon granting the father's objections to so much of an order of thesame court (Patsalos, S.M.), dated January 19, 2010, as directed the father to pay the sum of$13,913.08 for college expenses for the subject child for the period from the fall 2007 semesterthrough and including the fall 2009 semester, recalculated the father's obligation to contribute tothe subject child's college expenses and determined that the father was entitled to a credit in thesum of $3,407.
Ordered that the order dated March 29, 2010, is reversed, on the law and in the exercise ofdiscretion, without costs or disbursements, and the matter is remitted to the Family Court,Orange County, for a determination, in accordance herewith, of the amount owed by the fatherfor the college expenses for the subject child for the period from the fall 2007 semester throughand including the fall 2009 semester.
The parties are the parents of a child who was a college student beginning in the fall 2007semester. By orders dated October 16, 2007, and December 20, 2007, respectively, the father wasdirected to pay 83% of the college tuition for the subject child prior to March 2009, and 82% ofthe tuition for the child subsequent to March 2009. Those orders provided that the father was notresponsible for contributing towards the child's room and board at college.
In 2009 the mother commenced this proceeding, alleging that the father had failed tocontribute the required amount to college tuition for the five semesters from fall 2007 throughand including fall 2009. On or about September 21, 2009, the Support Magistrate issued an orderin which the father's college contributions were calculated based upon the total cost ofattendance, including room and board. The father filed objections to that order, and the FamilyCourt granted his objections and remitted the matter to the Support Magistrate. After a hearing,the Support Magistrate issued, inter alia, an order dated January 19, 2010, which recalculated thefather's obligation towards those costs. After the father filed objections to that order, the FamilyCourt issued an order dated March 29, 2010, in which that court determined the father'sobligation for college costs for the child and found that the father was entitled to a credit in thesum of $3,407.
In the order dated March 29, 2010, the Family Court deducted financial aid, including[*2]"Stafford" loans, prior to determining the father's share of collegecosts for the child. In determining the parents' respective obligations towards the cost of college,a court should not take into account any college loans for which the student is responsible (see Matter of Kent v Kent, 29 AD3d123, 133-134 [2006]). Therefore, any loans for which the child is responsible should nothave been deducted from the college costs prior to determining the father's pro rata share of thosecosts. Here, the record does not indicate whether the child is responsible for repayment of theStafford loans reflected on the statements from the college. Accordingly, the matter must beremitted to the Family Court, Orange County, for clarification of this matter.
In addition, the Family Court erred in applying the total amount of scholarships, grants, andstudent loans for which the child is not responsible (hereinafter collectively financial aid). First,the Family Court should have calculated the total cost of attending college, including tuition, androom and board. Next, it should have determined the percentage of that total cost which wascovered by financial aid. That percentage should then have been applied to the tuition portion.Finally, the father's share of the net tuition, after deducting the pro rata financial aid, should havebeen calculated based upon his percentage of responsibility (see Kennedy v Kennedy, 62 AD3d 755, 756 [2009]). For example,if tuition is $12,000 and room and board is $8,000, totaling $20,000, and financial aid is $15,000,or 75% of the total college cost, the net tuition after pro rata financial aid would be $3,000. Thefather's pro rata tuition obligation should then be applied to that amount to determine hiscontribution to tuition. Accordingly, the matter must be remitted to the Family Court, OrangeCounty, for recalculation of the father's obligation to contribute towards college costs inaccordance herewith. Angiolillo, J.P., Chambers, Austin and Miller, JJ., concur.