| Matter of Filosa v Donnelly |
| 2012 NY Slip Op 02494 [94 AD3d 760] |
| April 3, 2012 |
| Appellate Division, Second Department |
| In the Matter of Marlene S. Filosa, Respondent, v MichaelJ. Donnelly, Appellant. |
—[*1] Feldman and Feldman, Uniondale, N.Y. (Steven Feldman and Arza Feldman of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Suffolk County (Hoffmann, J.), dated May 23, 2011, which, interalia, denied his objections to an order of the same court (Livrieri, S.M.), dated March 25, 2011,which, after a hearing, and upon the denial of the father's application to dismiss the petition asjurisdictionally defective, granted the mother's petition, in effect, for an award of college tuitionexpenses for the parties' child and apportioned 50% of those expenses to him.
Ordered that the order dated May 23, 2011, is affirmed, with costs.
Since the record is clear that all parties viewed the petition as an "enforcement proceeding,"and the father's substantial rights were not prejudiced by any alleged defect, the Family Courtproperly denied the father's application to dismiss the petition as jurisdictionally defective(see CPLR 2001; YeshivaChasdei Torah v Dell Equity, LLC, 90 AD3d 746 [2011]).
"The terms of a separation agreement incorporated but not merged into a judgment of divorceoperate as contractual obligations binding on the parties (see Colucci v Colucci, 54 AD3d 710, 712 [2008]). A matrimonialsettlement is a contract subject to principles of contract interpretation, and a court shouldinterpret the contract in accordance with its plain and ordinary meaning" (Matter of Cricenti v Cricenti, 60 AD3d1052, 1053 [2009]). "Where such an agreement is clear and unambiguous on its face, theparties' intent must be construed from the four corners of the agreement, and not from extrinsicevidence" (Herzfeld v Herzfeld, 50AD3d 851, 851-852 [2008]).
Here, where the father failed to establish, in accordance with the terms of the parties'stipulation of settlement of divorce, that he was financially unable to pay for the child's collegetuition or that the mother did not comply with her obligation to encourage the child's use offinancial aid, scholarships, and available student loans, the Family Court did not improvidentlyexercise its discretion in granting the mother's petition and apportioning 50% of those expensesto him (see Matter of Cricenti v Cricenti, 60 AD3d at 1053; see also Manno vManno, 196 AD2d 488, 491 [1993]).
To the extent that the father argues that the child should have attended a less [*2]expensive college, that argument is without merit. The parties'stipulation did not mandate parental consent to the child's college choice, and it did not place alimit on the tuition amount for which the parties are responsible (see Matter of Cricenti vCricenti, 60 AD3d at 1053). Similarly, the father was not entitled to a credit toward his childsupport payment by virtue of the room-and-board component of the child's tuition, as no suchcredit was contemplated by the parties' stipulation of settlement (see Colucci v Colucci, 54 AD3d710, 712 [2008]). Balkin, J.P., Chambers, Hall and Austin, JJ., concur.