| Matter of Frank v Frank |
| 2011 NY Slip Op 07335 [88 AD3d 1123] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Nancy J. Frank, Respondent, v Kenneth J. Frank,Appellant. |
—[*1] Butler & Butler, P.C., Vestal (Matthew C. Butler of counsel), for respondent.
Mercure, J.P. Appeal from an order of the Family Court of Broome County (Pines, J.),entered July 15, 2010, which partially granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, to hold respondent in willful violation of a prior order.
The parties, who were divorced in 2009, are the parents of three children, born in 1987, 1990and 1994. By the terms of the separation agreement, which was incorporated, but not merged,into the judgment of divorce, the parties agreed that if any of the children were to attend collegefull time, each parent would contribute "on an equal basis" to the child's "reasonable educationalexpenses." When the parties' second child enrolled as an on-campus student at SUNY Fredoniain 2009, he was offered $5,500 in student loans. Against the wishes of respondent (hereinafterthe father), the child declined the loans. The father, stating his belief that the child should beresponsible for part of his room and board and tuition, deducted the amount of the loans from thechild's expenses and paid only half of the remaining balance, prompting petitioner (hereinafterthe mother) to commence this violation proceeding. Following a hearing, the Support Magistratedetermined that the child is not obligated by the separation agreement to accept any loans andordered the father to pay one half of the child's total expenses. Family Court denied the father'sobjections, and he now appeals.
The father concedes that the separation agreement obligates the parties to pay for each [*2]child's tuition, fees and books; however, he argues that if the childelects to go away to college, then the parties must come to "a reasonable agreement" regardinghow much they will contribute toward the child's total expenses. The father further contends thatone factor to be considered in reaching this agreement is the child's own contribution to his or herexpenses, be it through loans or other means.
"[A] separation agreement that is incorporated, but not merged, into a divorce de[c]ree is alegally binding independent contract between the parties which must be interpreted so as to giveeffect to the parties' intentions" (Matterof Heinlein v Kuzemka, 49 AD3d 996, 997 [2008]; see Desautels v Desautels, 80 AD3d 926, 928 [2011]). Here, theagreement contains no requirement that the children contribute to the cost of their education, norcan such a requirement reasonably be inferred (see Desautels v Desautels, 80 AD3d at928). The agreement does not allude to such a contribution; rather, it specifies that "the partiesshall contribute toward payment of the reasonable educational expenses . . . on anequal basis."
Furthermore, the agreement provides that reasonable educational expenses "include tuition,academic fees, and books," and "[i]f the parties agree and a child attends a boarding school. . . [reasonable] educational expenses will also include room and board." Theparties attribute different meanings to the phrase "[i]f the parties agree," with the father arguingthat it was intended to refer to the parties' agreement as to what amount they would contribute,while the mother testified that it was intended to refer to their agreement as to whether the childcould attend a boarding school. We agree with Family Court's resolution of that issue in themother's favor, and with the court's conclusion that the father did, in fact, agree that the childcould attend SUNY Fredonia.
The father's remaining contentions are either unpreserved or without merit.
Malone Jr., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.