| Matter of Stewart v Stewart |
| 2012 NY Slip Op 01531 [93 AD3d 907] |
| March 1, 2012 |
| Appellate Division, Third Department |
| In the Matter of Alicia Stewart, Appellant, v Timothy A. Stewart,Respondent. (And Two Other Related Proceedings.) |
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Mercure, A.P.J. Appeal from that part of an order of the Family Court of Albany County (M.Walsh, J.), entered October 1, 2010, which, in a proceeding pursuant to Family Ct Act article 4,partially granted respondent's objections to the order of a Support Magistrate.
By the terms of the parties' separation agreement, which was incorporated but not mergedinto their 2006 judgment of divorce, respondent (hereinafter the father) is required to pay privateschool tuition for the parties' child (born in 2000) if he is able to do so. That obligation wascarried forward when an order modifying child support was entered on consent in 2009. Thefather thereafter claimed that he could no longer afford to pay for the child's private schooleducation. Petitioner (hereinafter the mother) then sought modification and vacatur of the 2009order on the basis of newly discovered evidence—specifically, that the father had failed todisclose his ownership interest in certain real property and a real estate business.
A Support Magistrate granted the application and vacated the 2009 order. Following ahearing, the Support Magistrate ordered, as relevant here, that the father continue to pay tuitionfor the child's private education. The father filed objections, which Family Court granted to theextent of vacating that part of the Support Magistrate's order requiring the father to pay the child'stuition. The mother now appeals, arguing that the court erred in modifying the SupportMagistrate's order.[*2]
We affirm. " '[A] separation agreement that isincorporated, but not merged, into a divorce decree is a legally binding independent contractbetween the parties which must be interpreted so as to give effect to the parties' intentions' " (Matter of Frank v Frank, 88 AD3d1123, 1124 [2011], quoting Matterof Heinlein v Kuzemka, 49 AD3d 996, 997 [2008]). Here, the parties' separationagreement provides that the father will pay 100% of the child's private school tuition "subject tohis ability to do so." The record reflects that tuition at the private school selected by the mother isapproximately $4,500 per year. Thus, the sole issue before us is whether the father is currentlyfinancially able to pay that amount.
According to the uncontroverted testimony at the hearing, shortly before the partiesseparated, the father inherited approximately $400,000, of which $220,000 ultimately went to themother in conjunction with the parties' divorce. The father also loaned $117,000 to a friend topurchase a commercial building. His friend failed to repay the money and, when the propertywent into foreclosure in 2008, the father borrowed $215,000 from a private lender to purchasethe building in an attempt to salvage his investment. He then formed a real estate corporationwith his fiancÉe and borrowed another $50,000 to rehabilitate the property in the hope ofselling or renting it.
As of the time of the hearing, the father had never drawn a salary from the corporation.Moreover, the downturn in the real estate market, coupled with problem tenants and the need forextensive repairs, caused the business to suffer financial losses, which are documented on therelevant tax returns. The father testified that no money remains from his inheritance, and he hasbeen unable to pay off any of the $265,000 he borrowed to purchase and repair the property. Themother submitted no evidence to the contrary.
The father is also employed by the Civil Service Employees' Association, where he earned anannual salary of approximately $79,000 in 2009. Family Court correctly found that his monthlyincome, after taxes and other deductions but without deducting child support, was approximately$4,573, while his monthly expenses, excluding food (an expense covered by his fiancÉe),were approximately $4,934, resulting in a monthly deficit.
The mother argues that, in arriving at these figures, Family Court failed to account for apension of $2,639 per year that the father apparently receives from the City of Albany, as well asyearly tax refunds of approximately $10,000. Even if these amounts are added to the father'sincome, however, any increase would be fully offset by deducting the father's child supportpayments of approximately $1,000 per month, which the court did not do. Accordingly, wecannot say that the court erred in concluding that the father currently has no source of funds fromwhich to pay the child's private school tuition.
Peters, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.