| Matter of Korosh v Korosh |
| 2012 NY Slip Op 06957 [99 AD3d 909] |
| October 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Barbara I. Korosh, Appellant, v WilliamKorosh, Respondent. |
—[*1] William Korosh, Staten Island, N.Y., respondent pro se.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals froman order of the Family Court, Richmond County (Wolff, J.), dated December 2, 2011, whichdenied her objections to an order of the same court (Hickey, S.M.) dated June 17, 2011, after ahearing, denying her petition, inter alia, to hold the father in violation of the child supportprovisions of a stipulation of settlement dated August 8, 2003, which was incorporated but notmerged into a judgment of divorce dated May 25, 2004.
Ordered that the order dated December 2, 2011, is modified, on the law, by deleting theprovision thereof denying the mother's objection to so much of the order dated June 17, 2011, asdenied that branch of her petition which, in effect, sought to require the father to reimburse theparties' oldest son for the father's share of loans obtained by the son in connection with the son'scollege education, and substituting therefor a provision sustaining that objection; as so modified,the order is affirmed, without costs or disbursements, and the matter is remitted to the FamilyCourt, Richmond County, for further proceedings consistent herewith.
Contrary to the mother's contention, the evidence adduced at the hearing before the SupportMagistrate did not establish that the father violated the child support provisions of the parties'stipulation of settlement, which was incorporated but not merged into their judgment of divorce,by failing to pay certain college expenses other than the father's share of student loans obtainedby the parties' oldest son to finance that son's college education. Although the mother's attorneymade certain factual allegations at the hearing, these allegations did not constitute evidence(see Matter of Eason v Eason, 86 AD2d 666 [1982]). Moreover, contrary to the mother'scontention, the documentary evidence submitted in support of her objections, allegedlyestablishing various college expenses owed by the father, was properly disregarded since she didnot establish that it was offered at the hearing before the Support Magistrate (see Matter of Carene S. v Kendall S.,96 AD3d 767, 768 [2012]; Matterof Rzemieniewska-Bugnacki v Bugnacki, 51 AD3d 1029, 1030 [2008]; Matter of Williams v Williams, 37AD3d 843, 844 [2007]; Matter of Lahrs v Lahrs, 158 AD2d 944 [1990]).Accordingly, the Family Court properly denied the mother's objection to so much of the SupportMagistrate's order dated June 17, 2011, as denied that branch of her petition which soughtcompensation for these expenses.[*2]
The Family Court, however, improperly denied themother's objection to so much of the order dated June 17, 2011, as denied that branch of herpetition which, in effect, sought to require the father to reimburse the parties' oldest son for thefather's share of loans that were obtained by that son in connection with that son's collegeeducation, based on provisions of the parties' stipulation of settlement. " 'A stipulation ofsettlement which is incorporated but not merged into a judgment of divorce is a contract subjectto principles of contract construction and interpretation' " (Ackermann v Ackermann, 82 AD3d 1020, 1020 [2011], quoting Rosenberger v Rosenberger, 63 AD3d898, 899 [2009]; see Matter of Meccico v Meccico, 76 NY2d 822, 823-824 [1990];Rainbow v Swisher, 72 NY2d 106 [1988]; Ayers v Ayers, 92 AD3d 623, 624 [2012]). "[A] marital settlementis a contract subject to principles of contract interpretation [and] a court should interpret thecontract in accordance with its plain and ordinary meaning" (Ackermann v Ackermann,82 AD3d at 1020 [internal quotation marks omitted]). " 'Where such an agreement is clear andunambiguous on its face, the intent of the parties must be gleaned from the four corners of theinstrument, and not from extrinsic evidence' " (id. at 1021, quoting Rosenberger vRosenberger, 63 AD3d at 899; see Matter of Meccico v Meccico, 76 NY2d at 824)."A court may not write into a contract conditions the parties did not insert or, under the guise ofconstruction, add or excise terms, and it may not construe the language in such a way as woulddistort the apparent meaning" (Ayers v Ayers, 92 AD3d at 624). "Whether a writing isambiguous is a matter of law for the court, and the proper inquiry is whether the agreement on itsface is reasonably susceptible of more than one interpretation" (id. at 625 [internalquotation marks omitted]; see Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). "Inmaking this determination, the court also should examine the entire contract and consider therelation of the parties and the circumstances under which the contract was executed" (Ayers vAyers, 92 AD3d at 625).
Here, contrary to the determination of the Family Court, the stipulation of settlement wasambiguous with regard to the father's obligation to, in effect, reimburse the parties' oldest son forthe father's share of the expense of student loans. In the absence of a clear and unambiguousprovision to the contrary in the stipulation of settlement concerning the matter, "[i]n determiningthe parents' respective obligations towards the cost of college, a court should not take intoaccount any college loans for which the student is responsible" (Matter of Yorke v Yorke, 83 AD3d951, 952 [2011]; see Matter of Kentv Kent, 29 AD3d 123, 133-134 [2006]). Therefore, these loans should not be deductedbefore calculating the father's share of the son's college costs.
Accordingly, the matter must be remitted to the Family Court, Richmond County, for furtherproceedings consistent herewith, including a calculation of the respective shares of the father andthe parties' oldest son of the expenses of obtaining student loans to pay for the son's collegeeducation, and a new determination thereafter of that branch of the petition which, in effect,sought to require the father to reimburse the son for the father's share of loans obtained by the sonin connection with the son's college education. Angiolillo, J.P., Dickerson, Belen and Miller, JJ.,concur.