Opinion
Index No. XXXXXX/2021
06-13-2023
E.J., Plaintiff, v. M.J., Defendant.
For Plaintiff: Aiello & DeFalco LLP. For Defendant: Farley & Kessler, PC.
Unpublished Opinion
For Plaintiff: Aiello & DeFalco LLP.
For Defendant: Farley & Kessler, PC.
Hon. Edmund M. Dane, J.S.C.
The following papers have been read on these papers:
Plaintiff's Memorandum of Law with Supporting Exhibits x
Plaintiff's Order to Show Cause dated December 20, 2022 x
Defendant's Affidavit, Affirmation with Supporting Exhibits (Student Loans) x
Defendant's Affirmation with Supporting Exhibits (Legal Fees) x
PRELIMINARY STATEMENT
The Plaintiff moved by Order to Show Cause dated December 20, 2022 (Motion Sequence No.: 003) seeking an Order: (a) Pursuant to DRL 240-d and FCA 413-b, directing Defendant to pay to the Plaintiff support on behalf of the parties' daughter, L.J. (dob: xx/xx/xxxx); (b) Directing the Defendant to pay counsel fees in the sum of $10,000 directly to Aiello & DiFalco LLP; (c) Such other and further relief as to this Court may seem just, proper and equitable.
The parties executed a Settlement Agreement on March 22, 2023 (hereinafter referred to as the "Agreement"). The Agreement resolves all issues in this matrimonial action, except as set forth as follows:
2) The Wife's application for counsel fees
The Court notes that the Plaintiff previously moved by Order to Show Cause seeking, inter alia, counsel fees (Order to Show Cause dated December 20, 2022, Motion Sequence No.: 003, see supra). By Stipulation of the parties dated December 29, 2022, and thereupon so ordered by the undersigned Justice on January 4, 2023, the parties agreed that Motion Sequence No.: 003 would be referred to trial.
shall be determined by the Court. The parties agree that Husband may oppose the motion, and the parties may supplement the motion, or the Wife may bring a new motion, and the parties agree the motion shall be determined on the papers without a hearing on the issue of counsel fees. Both parties waive the right to a hearing on counsel fees. (see Article XXV, Page 42).
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9) The parties agree that the Husband signed Parent Plus loans for the parties' son J. with an aggregate balance of approximately $141,000. The parties agree that the allocation of this debt shall be determined by the Court based on a motion by the Husband to be filed within 30 days of the signing of this Stipulation. Both parties waive their right to an evidentiary hearing on the allocation of the Parent Plus loan and both parties understand it will be determined by the Court based solely upon their motion papers and attached exhibits.
BACKGROUND
The parties were married on xxxx, 1997. The parties have two (2) children, J. (born xxxx, 2001) and L (born xxxx, 2001). The Plaintiff commenced the within action for divorce and ancillary relief by the filing of a Summons with Notice with the Nassau County Clerk's Office on May 18, 2021. The Plaintiff initially appeared by and through counsel, Barrocas, Mintz, Misuraca & Record, P.C. The Defendant appeared by and through counsel, Farlye & Kessler, P.C. On or about May 11, 2022, the Plaintiff substituted her initial counsel and appeared by and through new counsel, Simonetti & Associates. On or about May 31, 2022, the Plaintiff substituted herself as pro se in place and stead of Simonetti & Associates. On February 2, 2022, this case was certified for trial by Certification Order of this Court dated February 2, 2022 (Hon. Edmund M. Dane, J.S.C.). On June 3, 2022, the Defendant filed a Note of Issue & Certificate of Readiness for Trial.
This Court issued a Decision and Order dated August 15, 2022 (hereinafter referred to as the "August Order"). The August Order, inter alia, denied the Plaintiff's application (without prejudice and with leave to renew) for "previous wasted and unnecessary counsel fees ($30,000)," denied the Plaintiff's request for "counsel fees for all future motions, settlement discussions and trial if necessary ($3,000-$15,000 TBD)," and denied the Plaintiff's request for reimbursement of lost wages. On November 29, 2022, the Plaintiff retained the firm of Aiello & DiFalco, LLP, to represent her in connection with this action. All issues of this action, except for the issues that are the subject of these written submissions, were resolved by the Agreement on March 22, 2023.
With respect to Motion Sequence No.: 001.
That portion of the application was denied without prejudice because the Plaintiff, inter alia, failed to append to her moving papers her retainer agreements with her prior counsel and her billing statements from her prior counsel, and she failed to append an updated Statement of Net Worth thereto.
That portion of her application was denied because, inter alia, the Court found that there was no legal basis to award the Plaintiff counsel fees for electing to proceed as self-represented.
THE PARTIES' CONTENTIONS
Only the portion of Motion Sequence No.: 003 with respect to the issue of counsel fees will be addressed herein, as the issue of child support has been resolved pursuant to the Agreement.
In her Order to Show Cause, the Plaintiff argues that the law contains a presumption that she should be awarded counsel fees. She argues that her first application for counsel fees (Motion Sequence No.: 001) was denied without prejudice because of technical defects with the application, and that her second application for counsel fees (Motion Sequence No.: 002) was never fully briefed or submitted and was, again, unlikely to be successful because of technical defects. She argues that her brother loaned her $10,000 secured by a promissory note to retain counsel. She argues she retained her current counsel on November 29, 2022, and seeks counsel fees to level the playing field.
In her written submissions to the Court, the Plaintiff argues that the Defendant, in the year prior to the commencement of this action, signed a series of parent plus loans for J. in the amount of approximately $141,000. She argues that the Court should consider the financial ability of the objecting parent to contribute to those expenses, as well as the academic backgrounds of the parties and the best interests of the child. She also avers that if she is obligated to contribute to the parent plus loan, her obligation should be, in effect, capped and limited at a SUNY rate. She argues that the parties never had a prior agreement with respect to the payment of college for J., that the parties were married and no divorce action was pending when J. matriculated, and that J. commenced his college education in the fall of 2019 (before the divorce). She further sets forth that J. continued to attend college through the Fall of 2020, and in January of 2021, she made it clear that she no longer agreed to contribute towards college at Quinnipiac. She argues that J. attended public high school and there is no history of private education in the family, as neither child attended private school. She argues that J. in now emancipated by having turned twenty-one in December of 2022 and J. has been estranged from her since 2020. She argues that in early 2021 she withdrew the FAFSA parent plus loan. She argues she sent a follow-up email to J. confirming her position. She argues that, after the aforesaid, without her consent or agreement, the Defendant agreed to pay for the private tuition from Qunnipiac. She argues that the Defendant authorized the Parent Plus loan for each year for J. for Spring 2021, 2022 and 2023. She argues that no documents were provided during discovery with respect to the loans. She argues she was never consulted with after Spring of 2021. She argues that most of the Parent Plus loans were incurred after the commencement of this divorce action. She argues that it is unclear as to which portion of the debts were accumulated before the action, although she appears to have agreed to send J. to Quinnipiac for the first year and a half. Her position is that the Defendant should be responsible for the loans incurred from Spring 2021 through J.'s graduation, and the loans incurred prior thereto should be allocated based upon the parties' pro rata shares of child support and other add on expenses. With respect to the issue of counsel fees, she argues that the Defendant forced Plaintiff to litigate the issue of child support for an adult dependent, dragged out the divorce process, that she cared for Lara who is developmentally disabled, and that fees were incurred because of the Defendant's unreasonable positions. She argues that the Defendant is in a far superior financial position and is the monied spouse, evidenced by the $110,000 disparity in the incomes of the parties. She seeks counsel fees in the aggregate sum of $24,071.62.
Defendant's Contentions:
With respect to the issue of the Parent Plus loan, the Defendant argues that J. was accepted as an undergraduate at Quinnipiac University in 2019 and he received a $23,000 per year partial scholarship, and that the remaining tuition required the parties to apply for a loan. He argues that at no time when the parties were applying for the loan did the Plaintiff object, but sometime in J.'s sophomore year, the Plaintiff started to object. He argues that J. graduates with a B.A. in Film in January of 2023. He argues that beginning in November of 2023, the loan payments will commence. He argues that there is not enough money from his share of the marital residence to pay the entire Parent Plus loan, and he should not have to shoulder the burden and pay 100% of the loan when the parties agreed to send the child to college.
With respect to the issue of counsel fees, the Defendant argues that he should not have to pay for the Plaintiff's poor decision in retaining her first two attorneys, and that her lack of funds to pay counsel is not his fault. He argues that the Plaintiff, acting previously pro se, previously filed two motions which he has to respond to and incur legal fees. He argues that his expenses are substantial and he continues to pay IRS debt and credit card bills. He argues that he has no bank accounts or savings accounts to pay counsel fees. He argues that most issues have now been resolved. He argues that both parties will have monies to pay counsel from the sale of the marital residence. He argues that he owes his own counsel $16,436.52, that the Plaintiff is gainfully employed receiving Social Security Disability.
DISCUSSION/ANALYSIS
ALLOCATION OF PARENT PLUS LOAN
Introduction
The issue of the student loan before this Court on the instant written submissions is a vexing one. Among the myriad issues surrounding same, the Court notes that a portion of the student loan was incurred prior to the commencement of this action, and a portion of the student loan was incurred after the commencement of this action. As a starting point, there is no question that the Parent Plus Loan (a/k/a the student loan) was utilized to, in effect, underwrite the costs of J.'s college education. For the reasons that follow, the Court treats the portion of the student loan incurred during the marriage and prior to commencement as a marital debt and allocates it in accordance with general equitable distribution principles, and, in effect, treats the portion of the loan incurred after commencement of this action until J. attained the age of twenty-one as an obligation to contribute to the college costs and expenses of the subject child and allocates those costs accordingly.
The Parent Plus Loan - Before Commencement - Equitable Distribution
Equitable distribution presents issues of fact to be resolved by the trial court. Oliver v. Oliver, 70 A.D.3d 1428 (4th Dept. 2010). It is well established that the fundamental purpose of equitable distribution law is the recognition of marriage as an economic partnership. See e.g. Fields v. Fields, 15 N.Y.3d 158 (2010); see also Price v. Price, 69 N.Y.2d 8 (1986); see also Mesholam v. Mesholam, 11 N.Y.3d 24 (2008)). The Domestic Relations Law recognizes that a marital relationship is an economic partnership, and during such marriage, spouses share in both its profits and losses. When the marriage is dissolved, however, courts are charged to equitably distribute both the assets and liabilities remaining from the marriage (see Fields v. Fields, 15 N.Y.3d 158 (2010)). In addition thereto, marital property should be construed broadly in order to give effect to the economic partnership concept of the marriage relationship recognized in the statute (see Price, supra).
Equitable distribution does not necessarily mean equal distribution, and requires the court's consideration of all relevant statutory factors. Santamaria v. Santamaria, 177 A.D.3d 802 (2d Dept. 2019). It is well settled that trial courts are granted substantial discretion in determining what distribution of marital property-including debt-will be equitable under all the circumstances, taking into account the relevant statutory factors. Ragucci v. Ragucci, 170 A.D.3d 1481 (3d Dept. 2019). Expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses, while expenses incurred after the commencement of an action for a divorce are, in general, the responsibility of the party who incurred the debt. Epstein v. Messner, 73 A.D.3d 843 (2d Dept. 2010); see also Bari v. Bari, 200 A.D.3d 835 (2d Dept. 2021). The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors. Gargiulo v. Gargiulo, 183 A.D.3d 803 (2d Dept. 2020); see also Uttamchandani v. Uttamchandani, 175 A.D.3d 1457 (2d Dept. 2019). It has also been held that college expenses or debt which arise for the benefit of the parties' child or children are deemed marital debt. A.B. v. D.B., 54 Misc.3d 1204 (A) (Supreme Court Queens County 2016).
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In fashioning an award of equitable distribution, the Supreme Court is required to discuss the statutory factors it relied upon in distributing marital property. Lewis v. Lewis, 118 A.D.3d 958 (2d Dept. 2014); see also Morille-Hinds v. Hinds, 87 A.D.3d 526 (2d Dept. 2011). The factors a court must consider in distributing marital property are set forth in Domestic Relations Law § 236(B)(5)(d). See Morille-Hinds, supra. The Court has considered the aforesaid statutory factors as follows:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
The written submissions do not reflect the earnings of the parties at the time of the marriage. However, a review of the Agreement reflects that the Plaintiff's income from employment and Social Security is $120,000 per year (see page 33) and the Defendant's income from employment and Social Security is $230,000 per year (see page 34). The Court has considered that both parties earn in excess of $100,000 per annum in its allocation of the Parent Plus loan.
(2) the duration of the marriage and the age and health of both parties;
The Agreement reflects that the parties were marred on xxxx, 1997. The Defendant is approximately 74 years of age (born in 1949) and the Plaintiff is approximately 71 years of age (born in 1952). The Court has considered that this is a marriage of approximately twenty-four (24) years (as of the date of commencement) and that both parties are in excess of seventy (70) years of age) in determining the allocation of the Parent Plus loan.
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
While both children have attained the age of twenty-one (21) years, the Court notes that the Agreement provides that the Plaintiff shall have exclusive use and occupancy of the marital residence until the sale of said marital residence. The Court has considered the parties' agreement to the Plaintiff's continued exclusive use and occupancy of the marital residence in its allocation of the Parent Plus loan.
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
The Court notes that upon the dissolution of the parties' marriage, the Plaintiff will lose the right to inherit the Defendant and the Defendant will lose the right to inherit from the Plaintiff. The Court has considered the reciprocal loss of inheritance rights from the other spouse in the allocation of the Parent Plus loan.
(5) the loss of health insurance benefits upon dissolution of the marriage;
The Court notes that the parties' Agreement reflects that both parties are covered by Medicare (see page 39). The Court has therefore considered in the allocation of the Parent Plus loan that it does not appear that either party will lose health insurance benefits upon the dissolution of the parties' marriage.
(6) any award of maintenance under subdivision six of this part;
The Court notes that the parties' Agreement reflects an agreement that the Defendant pay to the Plaintiff the sum of $750.00 per month in nontaxable maintenance through June 30, 2024 (see page 38). The Court has considered the agreed-upon maintenance to the Plaintiff in spite of the ages of the parties in the allocation of the Parent Plus loan.
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(8) the liquid or non-liquid character of all marital property;
The Court notes that, as appears from the written submissions and a review of the Agreement, the retirement accounts of the parties are de minimis, each party has their own respective business (which never appears to have been valued), and the largest asset of this marriage appears to be the marital residence. The Court has considered the agreed-upon distribution of the net proceeds of sale of the marital residence in the allocation of the Parent Plus loan.
(9) the probable future financial circumstances of each party;
It appears from the written submissions, and the parties' Agreement, that despite the ages of the parties, both parties will continue to be employed for the immediate and near future, and the parties will equally be dividing the proceeds from the sale of the marital residence. The Court has therefore considered the parties' future financial circumstances in the allocation of the Parent Plus loan.
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
While the parties reciprocally waived an interest in and to the other's business, there is nothing in the Agreement that reflects the value of those businesses. There is no indication in the written submissions that the businesses were ever valued. The Court has taken the reciprocal waiver in and to the other's business into consideration in the allocation of the Parent Plus loan.
(11) the tax consequences to each party;
There is no evidence in the written submissions as to the tax consequences to either party.
(12) the wasteful dissipation of assets by either spouse;
No wasteful dissipation of assets is alleged by either party in the written submissions.
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
No transfer or encumbrance made in contemplation of a matrimonial action without fair consideration having been alleged by either party in the written submissions.
(14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;
No allegations of domestic violence have been articulated in these written submissions.
(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal; and
This factor is not applicable in this matter.
(16) any other factor which the court shall expressly find to be just and proper.
The Court has considered the fact that the parties daughter, has been determined to be a person with developmental disabilities. The Court also notes that the parties agreed that the Defendant's monthly child support obligation shall be $3,272.50 per month commencing April 1, 2023 until the child is emancipated (see page 34) subject to Paragraph "6" of the Agreement (see page 35). The Court has therefore considered the parties' agreement on adult dependent support in the allocation of the Parent Plus loan.
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The Court has carefully reviewed the parties' Agreement. It appears to the Court that the largest asset of this marriage is the marital residence, which was valued at $1,045,000.00. The parties agreed that upon the sale of the marital residence, the remaining net proceeds shall be divided equally between the parties, and each party waived an interest in and to the other's business interest. The parties' other assets appear to be limited to de minimis pension and retirement accounts. The Court notes that this action for divorce and ancillary relief was commenced on May 18, 2021. The Plaintiff's Memorandum of Law reflects:
26 Ridge Road, Albertson, New York 11507.
See Agreement, Article XXVI, Paragraph "10".
The Plaintiff has a pension/retirement account with Chase valued at $600, and the Defendant has an IRA with Vanguard valued at $8,061.46.
"Plaintiff and Defendant never had any prior agreement with regards to college expenses for their son J.. The parties were married and no divorce action was pending at the time J. initially matriculated. The parties' son commenced his college education in fall 2019, long before the divorce. He continued to attend through the Fall of 2020. In January of 2021, the Plaintiff made it very clear that she no longer agreed to contribute towards J.'s college education at Quinnipiac, as will be addressed further below."
The Court has reviewed the email from the Plaintiff herself dated January 15, 2021, which reads:
Time stamped at 6:15:38 PM.
"I am following up on a conversation I had regarding withdrawing our FAFSA parent plus loan for our son J.J.. Please tell me the procedure for doing so. Should we withdraw the loan we realize that J. will not be able to return to QU this spring. However, our family situation looks like this is going to have to happen.
Thank you.
/s/ E and M J.(emphasis added).
The Plaintiff's own follow-up email on January 22, 2021 reads:
Time stamped at 8:46 AM.
"Please contact me as soon as possible regarding my son J's financial aid for Spring semester.
His behavior during the break has been so unacceptable that we have decided not to allow him to return to campus. As our Parent Plus loan is what provides funding for most of his education we are requesting that it be pulled for this semester. We would prefer some other way to get him under control but he has left our home and we do not know where he is staying. Since he refuses to return home nor turn over his car keys we cannot continue to support his education. As he is legally an adult, we cannot think of any other way for us to address this need for him to not return to school.
Do we need to contact the federal student loan agency or is this something we can do through you?
Thank you.
/s/ E and M J(emphasis added).
While the Plaintiff avers that the parties never had a prior agreement regarding the allocation of J's college costs, it appears from the emails sent directly from the Plaintiff herself that the parties - either explicitly or implicitly - agreed to utilize a Parent Plus loan to fund J's college education costs for a period of time. Both emails were sent by the Plaintiff herself and signed at the bottom jointly. The emails refer to the FAFSA parent plus loan as "ours", and make reference to the fact that the parties were both requesting withdrawal of the Parent Plus loan. In any event, there is no dispute that a portion of the Parent Plus loan was incurred during the parties' marriage. The Court, therefore, sees no reason to treat the Parent Plus loan accumulated during the marriage as anything other than a marital debt. Especially in light of the fact that the parties agreed to equally divide the proceeds of sale of the marital residence - arguably the largest asset of this marriage - the Court finds no countervailing factors to treat the marital portion of the Parent Plus loan any different in terms of its allocation. To this Court, if the parties are equally dividing the proceeds of the largest asset of the marriage, then, the portion of the largest debt accumulated during the marriage should be equally divided in the same manner. Additionally, the Court has considered the Plaintiff's representation to the Court that "...Plaintiff appears to have agreed to send J to Quinnipiac for the first year and a half, so the Fall 2019-Spring 2020 and Fall 2020 semesters..." The Court finds the Plaintiff's agreement to send J to Quinnipiac during the first year-and-a-half to be another compelling factor in equitably dividing the marital portion of the Parent Plus loan incurred from inception to the date of commencement.
See Plaintiff's Memorandum of Law, page 9.
The Court recognizes that the Parent Plus loan may, at some point, contain both principal and interest payments. The Court finds that the Plaintiff should be responsible for an amount equal to fifty (50%) percent of the loan principal incurred from inception of the loan to the date of commencement of this action. But what about the interest which may accumulate if the loan is not satisfied, in full, prior to the commencement of payment? The Court notes that no documentary evidence or other evidence, such as an Affidavit from an expert or accountant, was presented to the Court on these submissions from the Defendant regarding how much interest, if any, has already accrued on the Parent Plus loan, or how much interest, if any, will prospectively accrue on the Parent Plus loan. Therefore, the Court declines to make the Plaintiff responsible for any interest on the Parent Plus loan, and her obligation is limited to the principal of said loan. Accordingly, in light of all of the aforesaid, it is hereby:
ORDERED, that within thirty (30) days of the date of this Decision and Order, the Defendant shall send to the Plaintiff an itemized breakdown (with proof from the loan servicer) of the amount of the Parent Plus loan incurred from the inception of the loan through May 18, 2021 (the date of commencement of this matrimonial action); and it is further
ORDERED, that the Plaintiff shall liable and responsible for fifty (50%) percent of the Parent Plus loan principal incurred from its inception through the date of the commencement of this matrimonial action; and it is further
ORDERED, that the Plaintiff's fifty (50%) percent responsibility towards the principal of the Parent Plus loan from its inception through the date of commencement of this action as detailed hereinabove shall be payable directly to the Defendant from the Plaintiff's share of the net proceeds that are derived from the sale of the marital residence, which sum shall be payable to the extent indicated below; and it is further
ORDERED, that to the extent that the Plaintiff's share of the net proceeds of sale that are derived from the sale of the marital residence are insufficient to satisfy the Plaintiff's fifty (50%) percent share of the Parent Plus loan principal incurred from the inception of the loan through the date of commencement of this matrimonial action, then, in that event, the Plaintiff shall pay to the Defendant any sums remaining representing her fifty (50%) percent share of the principal of the Parent Plus loan (as described aforesaid) within thirty (30) days of the closing of title of the marital residence; and it is further
ORDERED, that upon the Plaintiff's failure to pay any remaining sums as set forth aforesaid within said thirty (30) day period, then, in that event, the Defendant is permitted to enter a money judgment in the amount due then remaining in favor of the Defendant, M.J., and against the Plaintiff, E.J., without further proceedings.
The Parent Plus Loan - After Commencement - College Costs & Expenses
It does not appear to the Court that the Plaintiff signed or executed any documents in connection with the Parent Plus loan after the date of commencement of this matrimonial action. Expenses incurred after the commencement of an action for a divorce are, in general, the responsibility of the party who incurred the debt. Epstein v. Messner, 73 A.D.3d 843 (2d Dept. 2010); see also Opperisano v. Opperisano, 35 A.D.3d 686 (2d Dept. 2006). While the Court is cognizant that debt incurred in connection with household living expenses and clothing for the parties' children is debt that can be divided between the parties, even if incurred after the commencement of such an action (cf. Sawin v. Sawin, 128 A.D.3d 663 (2d Dept. 2015), this Court does not consider payment of household living expenses to encompass the payment of college. Therefore, the Court cannot treat the portion of the Parent Plus loan incurred after commencement of this action, especially since the Plaintiff indisputably withdrew her consent to the loan - to be a debt subject to equitable distribution.
A court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party. See Trazzera v. Trazzera, 199 A.D.3d 855 (2d Dept. 2021); see also Robinson v. Big City Yonkers, Inc., 179 A.D.3d 961 (2d Dept. 2020). Here, while the parties seek the Court's specific determination on the allocation of the Parent Plus loan, both parties set forth that the Court may direct a parent to contribute to a child's private college education. The Court therefore finds the relief - i.e., the allocation of each party's obligation to contribute to the college expenses of J post-commencement - to be warranted, as that relief plainly appears on the papers on both sides. Additionally, the Court finds the relief is not too dissimilar to the relief sought: there can be no doubt - and it is not disputed - that the Parent Plus loan funded J's college costs. Lastly, the Court finds that no prejudice befalls either party, as both parties argue the law on the allocation of a child's college costs and expenses. Therefore, the Court elects to treat the portion of the Parent Plus loan incurred after commencement and until J attained the age of twenty-one (21) as an obligation to contribute to J's college costs and expenses.
See Plaintiff's Memorandum of Law, page 3. See also Defendant's Affirmation page 4.
A parent has no legal obligation to provide for or contribute to the support of a child over the age of 21. In the absence of a voluntary agreement, a parent may not be directed to pay support or to contribute to the college education of a child who has attained the age of 21 years, and has no obligation to continue the support of a child after the child reaches the age of 21 years. Sinnott v. Sinnott, 194 A.D.3d 868 (2d Dept. 2021) (internal citations omitted).
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Support for a child's college education is not mandatory. Dougherty v. Dougherty, 131 A.D.3d 916 (2d Dept. 2015). The determination of educational expenses is a separate item in addition to the basic child support obligation and such expenses are to be determined by the court. MacVean v. MacVean, 203 A.D.2d 661 (3d Dept. 1994). Domestic Relations Law § 240 (1-b)(c)(7) provides:
(7) Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.
Pursuant to Domestic Relations Law § 240 (1-b)(c)(7) (see supra), the court may direct a parent to contribute to a child's education, even in the absence of special circumstances or a voluntary agreement. The court may consider the circumstances of the case and the respective parties as well as the best interests of the child and the requirements of justice. Abizadeh v. Abizadeh, 159 A.D.3d 858 (2d Dept. 2018). Whether a parent is obligated to contribute to a child's college education is dependent upon the exercise of the court's discretion. Frates v. Frates, 142 A.D.3d 582 (2d Dept. 2016). Relevant factors may include the child's academic ability, the parents' educational background and the ability to pay. Matter of Naylor v. Galster, 48 A.D.3d 951 (3d Dept. 2008); see also Brough v. Brough, 285 A.D.2d 913 (3d Dept. 2001). In addition, a relevant factor may include the type of college that would be most suitable for the child. Pamela T. v. Marc B., 33 Misc.3d 1001 (Supreme Court New York County 2011).
Since the parties have agreed to waive a hearing on the issue, the Court will proceed to adjudicate same on these papers. The Court finds that the Plaintiff is obligated to contribute to J's college costs and expenses which were incurred from the date of commencement of this action until J's twenty-first birthday. In so finding, the Court has considered a multiplicity of factors. First, the Court has considered the educational background of the parties (see Matter of Naylor, supra), and notes that both parties have attained advanced educational degrees, to wit: the Plaintiff a college degree and a Master's Degree in special education, and the Defendant a college degree, Master's Degree and a Doctorate. Second, the Court has considered the parent's ability to pay (see Matter of Naylor, supra), and notes that the Plaintiff earns in excess of $100,000 per annum and the Defendant earns in excess of $225,000 per annum. Third, the Court has considered the child's academic ability (see Matter of Naylor, supra). In this respect, the Court has reviewed J's transcript at Quinnipiac University which reflects, inter alia, eight "A's", eight "A-'s", five "B+'s", three "B's", two "B-'s", while only having three "C's", two C-'s", two "D's", and five "F's". While his grades may not have been perfect, stellar or exemplary, his academic ability is certainly sufficient enough to have his parent's contribute to same. Fourth, the Court has considered J's best interests (see Abidazeh, supra), and finds that J's best interests were furthered by the obtainment of a college degree and the experience of attending college. Fifth, the Court has considered the circumstances of the case (see Abidazeh, supra). In this regard, while the Court notes J's estrangement from the Plaintiff and the lack of knowledge of J's education. The Court also notes that the Plaintiff is not completely adverse to paying a portion of the Parent Plus loan, utilized to underwrite the costs of J's college education. While the Plaintiff - in this regard - only seeks to contribute on a pro rata basis for the portion of the Parent Plus loans accumulated prior to January 2021, the Court declines to truncate the Plaintiff's responsibility for college costs after commencement, as such a conclusion would be tantamount to financial punishment thrust upon J for pursuing a college education just like his parents did.
See Exhibit "A" to the Defendant's written submissions.
The Court's inquiry does not stop here. There is a second question: whether to impose a "SUNY Cap" for J's college costs and expenses incurred after commencement of this action. The SUNY cap is a concept that has been judicially created by way of a string of decisions rendered since the enactment of the statute. See Pamela T., supra. Whether to impose a SUNY cap is determined on a case-by-case basis, considering the parties' means and the child's educational needs. Spinner v. Spinner, 188 A.D.3d 748 (2d Dept. 2020); Tishman v. Bogatin, 94 A.D.3d 621 (1st Dept. 2012); Pandis v. Lapas, 176 A.D.3d 837 (2d Dept. 2019). Here, the Court exercises its discretion and elects to impose a SUNY cap on the Plaintiff's obligation to contribute to J's college costs and expenses incurred after the commencement of this action. In arriving at this determination, the Court has considered the parties' means. The Court notes that while the Plaintiff earns in excess of $100,000 per year and the Defendant earns in excess of $225,000 per year, both parties are over the age of seventy (70), the parties have de minimis savings, and it is unknown to the Court how much equity is in the marital residence, as the Agreement is devoid of any indicia of the outstanding mortgage thereon. The Court comes to the conclusion that the parties do not have ad infinitum means or resources. Secondarily, the Court has considered that J was accepted into SUNY Oswego and Binghamton, and that J was offered a full scholarship to attend SUNY Oswego.
*
Education expenses are not directly connected to the basic child support calculation and are not necessarily prorated in the same proportion or percentage as each parent's income bears to the combined parental income. Sinnott v. Sinnott, 194 A.D.3d 868 (2d Dept. 2021); see Cimons v. Cimons, 53 A.D.3d 125 (2d Dept. 2015)). The Court has not found any statutory authority nor controlling case-law which dictates that the Court cannot allocate each party's pro rata share of the obligation to contribute to a child's college costs and expenses in the same manner as allocated in the CSSA. The Court, based upon the facts of this case, including but not limited to, the disparity in the respective incomes of the parties and the equitable distribution of the parties' assets and liabilities, finds that the appropriate allocation of J.'s college costs and expenses from the date of commencement through the date J attained the age of twenty-one (21) years is thirty-four (34%) percent by the Plaintiff and sixty-six (66%) percent by the Defendant. The Defendant has not given this Court a sufficient basis to deviate from that allocation. The income of Plaintiff for child support purposes is $110,820.00 and the income of the Defendant for child support purposes is $216,462.60 . Adding the two incomes together equals $327,282.60 as and for the combined parental income. Therefore, the Defendant's pro rata share of the combined child support obligation is sixty-six (66%) percent and Plaintiff's pro rata share of the combined child support obligation is thirty-four (34%) percent.
$120,000.00 (gross income) (see Agreement, page 33) - $7,440.00 (FICA Social Security) - $1,740.00 (FICA Medicare) = $110,820.00.
$230,000.00 - $9,932.40 (FICA Social Security) - $2,900.00 (FICA Medicare) - $705 (FICA Medicare surtax) = $216,462.60.
The Court notes that while the CSSA computations are provided for in the parties' Agreement (see Article XX), the Court nonetheless found it prudent to set forth the parties' respective incomes, applicable deductions pursuant to statute, and each party's pro rata share of the obligation in this Decision and Order.
Accordingly, and based upon all of the aforesaid, it is hereby:
ORDERED, that the Plaintiff shall be liable and responsible for thirty-four (34%) percent of J's college costs and expenses incurred from the date of commencement of this matrimonial action until J's twenty-first (21st) birthday, subject to that which is set forth below; and it is further
ORDERED, that college costs and expenses for J shall include the cost of tuition, mandatory fees, required books and housing and meals; and it is further
ORDERED, that the Plaintiff's obligation to contribute to J's college costs and expenses as defined in the preceding decretal paragraphs of this Decision and Order shall be capped and limited to a SUNY Cap as if J attended college at SUNY Binghamton; and it is further
ORDERED, that the Plaintiff's thirty-four (34%) percent obligation to contribute to J's college costs and expenses (to the extent indicated herein) shall be payable directly to the Defendant to the extent set forth below; and it is further
ORDERED, that within thirty (30) days of the date of this Decision and Order, the Defendant shall send directly to the Plaintiff an accounting with documentary evidence of such college costs and expenses actually incurred; and it is further
ORDERED, that the Plaintiff's thirty-four (34%) percent responsibility towards J's college costs and expenses, as defined aforesaid (see supra), shall be payable from the Plaintiff's share of the net proceeds derived from the sale of the marital residence, which sum shall be payable to the extent indicated below; and it is further
ORDERED, that to the extent that the Plaintiff's share of the net proceeds of sale that are derived from the sale of the marital residence are insufficient to satisfy the Plaintiff's thirty-four (34%) percent share of J's college costs and expenses from the date of commencement of this action through the date J attained the age of twenty-one (21) years, then, in that event, any remaining funds owed shall be paid by the Plaintiff directly to the Defendant within thirty (30) days of the closing of title of the marital residence; and it is further
ORDERED, that upon the Plaintiff's failure to pay any remaining sums as set forth aforesaid within said thirty (30) day period, then, in that event, the Defendant is permitted to enter a money judgment in the amount due then remaining in favor of the Defendant, M.J., and against the Plaintiff, E.J., without further proceedings.
Repayment of the Loan
In view of the Court's rulings herein, the Defendant shall be solely liable and responsible for the actual repayment of the Parent Plus loan. The Defendant shall be reimbursed from the Plaintiff to the extent indicated in this Decision and Order (see supra), so it is hereby:
ORDERED, that the Defendant shall be solely and individually liable and responsible for the actual repayment of the Parent Plus loan.
COUNSEL FEES
Domestic Relations Law § 237, the statutory predicate for an award of counsel fees, provides in relevant part:
(a) In any action or proceeding brought... (3) for a divorce... the court may direct either spouse... to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment...."
In addition to the parties' respective financial position, the court is entitled to consider whether or not a party "unnecessarily protracted the litigation and the quality of presentation afforded the [moving party's] attorney". See Singer v. Singer, 16 A.D.3d 666 (2d Dept. 2005). The issue of counsel fees is controlled by the equities and circumstances of each particular case. See Basile v. Basile, 122 A.D.2d 759 (2d Dept 1986). Among many factors, the court must consider the respective financial positions of the parties in determining whether an award is appropriate (see Borakove v. Borakove, 116 A.D.2d 683 (2d Dept 1986), the financial need of the party and the parties' disparate incomes (see Hausman v. Hausman, 162 A.D.2d 590 (2d Dept 1990)), the time expended by counsel, the hourly rate for such services in the legal marketplace, the nature of the legal services rendered, the issues before the court and the professional standing of counsel. See DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879 (1987). [A]ny award of attorney's fees should be based, inter alia, on the relative financial circumstances of the parties, the relative merit of their positions, and the tactics of a party in unnecessarily prolonging the litigation. See Ventimiglia v. Ventimiglia, 36 A.D.3d 899 (2d Dept 2007). The court must examine other factors in the counsel fee equation, specifically, "both parties' ability to pay, the nature and extent of the service required to deal with the issues, and the reasonableness of their performance under the circumstances. See Sampson v. Glazer, 109 A.D.2d 831 (2d Dept 1985)).
The Plaintiff requests counsel fees in the sum of $20,000.00 payable directly to her current attorneys, Aiello & DiFalco, LLP, and $4,071.62 to her former counsel, Barrocas, Mintz, Misuraca & Record, P.C. In the aggregate, therefore, her request totals $24,071.62. Both parties were represented by experienced and capable matrimonial attorneys. The Court has carefully reviewed the parties' Agreement, which reflects that the Defendant's income is $230,000.00 per annum and the Plaintiff's income is $120,000.00 per annum. The Court finds that the Defendant is the monied spouse. The Court notes that his income is approximately $110,000.00 more than the Plaintiff and that his income comprises 66% of the parties' combined income. While the Plaintiff herself does earn $110,000.00 per annum by admission, indigency is not a prerequisite to an award of counsel fees. Lieberman v. Lieberman, 187 A.D.2d 567 (2d Dept. 1992); see also Schek v. Schek, 49 A.D.3d 625 (2d Dept. 2008). The Court notes that there was no evidence presented that during these proceedings that the Defendant made any contributions in and towards the Plaintiff's counsel fees, which the Court has taken into consideration in its counsel fee award herein. The Court has also taken into consideration the allocation of the Parent Plus loan as ordered herein (see supra) in arriving at its $20,000.00 counsel fee award. However, the Court has also considered that, during a time in these proceedings, this matter somewhat languished during the Plaintiff's self-representation, and that the Defendant was forced to spend and incur counsel fees in the defense of two separate motions interposed by the Plaintiff pro se seeking counsel fees for being self-represented. The Court has also considered the relative merit of the Defendant's positions espoused during these proceedings. Even in light of the aforesaid, however, the Defendant did not overcome the presumption that he is the monied spouse. The Court has reviewed the Plaintiff's retainer agreements with her counsel(s), both current and former, as well as the billing statements of her current and former counsel, and the Court finds that the hourly rates charged are reasonable and that the time charges incurred were reasonable in the representation of the Plaintiff.
ORDERED, that the Plaintiff be and is hereby awarded total counsel fees in the sum of $22,000.00 to the extent allocated and as is more fully set forth below in this Decision and Order (see infra); and it is further
ORDERED, that the Defendant shall pay directly to the Plaintiff's counsel, AIELLO & DIFALCO, LLP, the sum of $18,594.87, within sixty (60) days of service of a copy of this Decision and Order with Notice of Entry; and it is further
ORDERED, that upon the failure of Defendant to pay the Plaintiff's counsel as set forth herein above, the Plaintiff's counsel may file an Affidavit of Non-Compliance with the Clerk of the County, who shall enter a judgment, with statutory interest thereon as of the date of this Decision and Order, in favor of AIELLO & DIFALCO, LLP, attorneys for the Plaintiff, and against the Defendant, M.J, without further proceedings; and it is further
ORDERED, that the Defendant shall pay directly to the Plaintiff's former counsel, BARROCAS, MINTZ, MISURACA & RECORD, PC, the sum of $3,405.13, within ninety (90) days of service of a copy of this Decision and Order with Notice of Entry; and it is further
ORDERED, that upon the failure of Defendant to pay the Plaintiff's counsel as set forth herein above, the Plaintiff's counsel may file an Affidavit of Non-Compliance with the Clerk of the County, who shall enter a judgment, with statutory interest thereon as of the date of this Decision and Order, in favor of BARROCAS, MINTZ, MISURACA & RECORD, PC, attorneys for the Plaintiff, and against the Defendant, M.J., without further proceedings.
MISCELLANEOUS
Simultaneously herewith, this Court will issue a separate Order directing the submission of the Findings of Fact and Conclusions of Law, Judgment of Divorce, and all other papers necessary to dispose of this action.
Any other relief requested not specifically addressed herein is hereby DENIED.
This constitutes the DECISION AND ORDER of this Court.