Summary
In Cohen v. Cohen, 193 Misc. 106, 82 N.Y.S.2d 513, 514 (1948), the court stated that the non-custodial parent "should be obliged to make up for his neglect, and to contribute towards his son's education as much as lies within his power."
Summary of this case from Nash v. MulleOpinion
May 28, 1948.
Samuel Douglas for plaintiff.
Norman Kemper for defendant.
This is a motion to modify a final decree of divorce so as to increase the allowance for the care, maintenance and education of an infant from $10 to $50 a week. The basis for the application is that the infant, who was more than nineteen years of age when the motion was made, has enrolled as a student in a premedical school and an increased allowance is necessary not only for his support and maintenance but also for his education.
The evidence as to the defendant's standard of living convinces me that the testimony concerning his earnings is absolutely unworthy of belief. Nor am I satisfied that he has at any time adequately provided for the care, maintenance and education of his children. This burden, since the divorce, has fallen upon others. It is true that, because of the infant's age, it may not be possible to compel the defendant to bear the entire burden of his education. Nevertheless, I feel that he should be obliged to make up for his neglect and to contribute towards his son's education much as lies within his power.
The contention that the defendant is not compelled to provide more than a public school education is, under the prevailing weight of modern authority, untenable ( Esteb v. Esteb, 138 Wn. 174; Jackman v. Short, 165 Or. 626; Madden on Domestic Relations, pp. 394-395; see annotations, 47 A.L.R. 118, and 133 A.L.R. 911-914). It is true that a college education is not a "necessary" within the meaning of that term for which a parent may be held liable in an action instituted by a third party ( Halsted v. Halsted, 228 A.D. 298; International Text Book Co. v. Connelly, 206 N.Y. 188, 195). Such cases, however, are distinguishable (see annotation 133 A.L.R. 911, discussing Middlebury College v. Chandler, 16 Vt. 683).
In any event, it seems to me that, under the circumstances of this case, justice requires that the final decree be amended so as to increase the allowance for the support, maintenance and education of the infant from $10 a week to $25 a week. Motion to confirm the referee's report is modified to the extent herein indicated. Settle order.