Opinion
2011-12-30
Robert PETHICK, Plaintiff–Appellant, v. Elizabeth PETHICK, now known as Elizabeth Caccamise, Defendant–Respondent.
Appeal from an order of the Supreme Court, Monroe County (Richard A. Dollinger, A.J.), entered July 6, 2010. The order, insofar as appealed from, determined that the parties' separation agreement is not an enforceable agreement with respect to college expenses.Dan M. Walters, Pittsford, for plaintiff–appellant. Maureen A. Pineau, Rochester, for defendant–respondent.
Appeal from an order of the Supreme Court, Monroe County (Richard A. Dollinger, A.J.), entered July 6, 2010. The order, insofar as appealed from, determined that the parties' separation agreement is not an enforceable agreement with respect to college expenses.Dan M. Walters, Pittsford, for plaintiff–appellant. Maureen A. Pineau, Rochester, for defendant–respondent.
MEMORANDUM:
Plaintiff's sole contention on appeal is that the parties' separation agreement, which was incorporated into the judgment of divorce, created a binding obligation on defendant to contribute to the college expenses of the parties' child and thus that Supreme Court erred in refusing to direct defendant to reimburse him for the college expenses that he incurred before he filed his motion seeking, inter alia, that relief. Plaintiff's contention is not properly before us, however, inasmuch as the Support Magistrate determined, after a hearing, that the college education provision of the separation agreement was unenforceable, and plaintiff failed to appeal from that order ( see Matter of Hammill v. Mayer, 66 A.D.3d 1196, 1197–1198, 887 N.Y.S.2d 716; Matter of Clark v. Clark, 61 A.D.3d 1274, 876 N.Y.S.2d 913, lv. denied 13 N.Y.3d 702, 2009 WL 2762643; *522 Matter of Regan v. Zalucky, 56 A.D.3d 825, 826–827, 867 N.Y.S.2d 229). We therefore dismiss the appeal ( see generally Abasciano v. Dandrea, 83 A.D.3d 1542, 1542–1543, 924 N.Y.S.2d 696).
It is hereby ORDERED that said appeal is unanimously dismissed without costs.