Opinion
E2020000046
05-13-2020
Shauna TUCKER, Plaintiff, v. William TUCKER, Defendant.
JEFFREY MICHAEL GERACE, Esq., Wesley Clark & Bates, LLP, 45 Exchange Blvd., Suite 900, Rochester, NY 14614, Attorneys for the Plaintiff Shauna Tucker DAVID EUGENE ZUKHER, Esq., Weisberg & Zukher, PLLC, 109 S WARREN ST. STE. 711, Syracuse, NY 13202, Attorneys for the Defendant William Tucker
JEFFREY MICHAEL GERACE, Esq., Wesley Clark & Bates, LLP, 45 Exchange Blvd., Suite 900, Rochester, NY 14614, Attorneys for the Plaintiff Shauna Tucker
DAVID EUGENE ZUKHER, Esq., Weisberg & Zukher, PLLC, 109 S WARREN ST. STE. 711, Syracuse, NY 13202, Attorneys for the Defendant William Tucker
Richard A. Dollinger, J.
This matter revives this Court's view of a matrimonial "Civil War." At the settlement of a divorce, a couple, rather than confront future difficulties, postpones the most costly — paying for college education — until the issue reaches a crescendo as the children attend college.
Then, with large costs looming, conflict — who should pay what and what role does the child's relationship with the non-paying parent play, if any — erupts and, often times, as here, the conflict turns decidedly uncivil. In this instance, the undisputed lack of any contact between father and daughters for more than a decade moves this matter out of the "uncivil" category and into "hostile" territory.
This couple have two children: one is over 21 and the second is 19. It is undisputed that the couple always anticipated that children would attend college. In the judgment of divorce, the couple agreed that there were 529 accounts established to fund the cost of their children's college education. The stipulation provided:
529 college savings accounts are funded with tax-deferred dollars for qualified tuition programs. See 26 USC § 529 (2017)( hereinafter 529 accounts); see e.g. , Matter of
... there are certain accounts held by the defendant for each of the two children for the purpose of funding as much as possible the cost of their college education ... The husband warrants and represents that he shall continue to maintain those accounts for each of the children.
The father was the trustee of the accounts and there is no evidence before this Court that anything other than marital funds were deposited into the accounts. The funds matured over time. The father also warranted that the mother would be entitled to a statement on a quarterly basis as to the status of those accounts.
The mother alleges that in 2014 the older child's account had approximately $93,000 in it. But, the mother further alleges that the father did not use the 529 accounts for strictly tuition-or-college-related expenses and withdrew more than $17,000 to finance trips for the daughters while they were in high school. In this application, the wife alleges that the older daughter's 529 account was depleted in March, 2019, but the child continued to attend college and further that the father has refused to reimburse the mother for the remainder of the older daughter's college expense. The current amount of unreimbursed educational expenses is $27,229.99. As a result of the father's failure to pay or use the 529 to pay college expenses, the mother has incurred significant debt. The mother seeks an order directing the father to pay for the children's college expenses, a full accounting of the funds withdrawn from the children's 529 accounts, reimbursement to the mother of all out-of-pocket college expenses, and other relief including an award of attorneys fees.
In response to the wife's application, the father crossed moved to dismiss the complaint or, in the alternative, to transfer the venue of this matter to Onondaga County, the site of the original divorce stipulation. In seeking dismissal, the father argues that he never agreed to pay for all four years of college or the costs associated for either daughter. The father argues that he did what he promised to do: he maintained the 529 plan accounts for 15 years and then used the money for the children's expenses for college and preparing the children to attend college. In addition he argues that he has now paid 100% of all the associated cost for his daughters college education through the 529 accounts but the mother has paid nothing.
Finally, the father argues that he has no current relationship with his children and has not had any relationship with them for more than a decade. He alleges that the cause of breakdown was the mother's persistent pattern of exclusion and derogation of his role as a parent. He claims that as a result of this pattern of alienation, the children have forfeited any claim against him for financing college costs and the mother has surrendered any claims to enforce the college cost requirements in their agreement. The mother, in reply papers, vigorously denies those allegations and claims the daughter's estrangement from their father was a self-inflicted wound caused by his own behaviors a long time ago.
Initially, this Court declines to change the venue of this action. The daughters and mother have lived in Monroe County for more than a decade and other actions, involving the parents, have been previously venued in Monroe County Family Court. There is no evidence that the convenience of witnesses would be impacted or any claim that production of documents or other information would be impaired by venue here. The father's request to change venue is denied.
Second, this Court concludes that the current dispute does not involve an interpretation of the divorce stipulation. The father rightfully notes that the stipulation did not require him to finance his daughter's college education out of his own pocket. Therefore, this Court holds that the unambiguous terms of the agreement do not require him to finance any portion of his daughter's college costs. If the parents had intended to create an independent obligation on the father's part to finance college costs, the agreement could have easily included that language. It does not. But, while there is no interpretation question before the Court, the issue of the father's compliance with his stated obligation — to maintain the 529 accounts to fund "as much as possible" of the daughter's education costs — remains. The stipulation does not permit the father to use the 529 accounts for any purpose other than to fund "as much" of the college costs as possible. The mother raises factual issues of the father's compliance with that requirement and, given disputed facts relating to withdrawals, the alleged existence of separate accounts for each daughter and the ultimate amounts remaining (if any) in the accounts, this Court needs a hearing to resolve those issues.
Third, the mother makes a claim that even if the agreement does not require the father to fund the college costs for the daughters. Pursuant to DRL § 240 (1—b)(c)(7), " ‘[i]n certain circumstances, a parent may be required to contribute to a child's higher education expenses even in the absence of an agreement to do so’ " ( Reiss v. Reiss , 56 AD3d 1293, 1294 [4th Dept 2008] ; see DRL § 240 (1—b)(c)(7) [the court, "as justice requires," has discretion to order a parent to pay college expenses, considering "the circumstances of the case and of the respective parties and ... the best interests of the child"] ). The "circumstances of the parties" that this court considers include "the educational background of the parents, the child's academic ability and the parent's financial ability to provide the necessary funds" ( McDonald v. McDonald , 262 AD2d 1028, 1029 [4th Dept 1999] ).
There is a little question that the facts alleged in this case could lead to a conclusion that the father, under the standards set forth above, should contribute to financing the children's college education. His career as a physician attests to his commitment to education and the mother similarly has a college degree. Generally, however, such a determination requires a hearing (see McDonald , 262 AD2d at 1029 ), and thus this Court declines to make any judgment on that issue in advance of such hearing.
Under these circumstances, the Court concludes:
(A) the request to order the father to fund college expenses is denied without prejudice and referred to a hearing;
(B) the request for the father to provide a full accounting of the children's 529 accounts is granted and he is ordered to provide the account statements for the last five years and all records evidencing the disbursement and use of any funds withdrawn from those accounts, including where the funds were deposited and ultimately spent;
(C) the request for reimbursement to the mother for college costs incurred is denied without prejudice and referred to a hearing;
(D) the request to replenish 529 accounts for funds withdrawn to pay for trips by the children, the College Assistance Program or other trips is also is denied without prejudice and referred to a hearing; and,
(E) the request for attorneys fees is denied without prejudice and referred to a hearing.
The father's cross-motion to dismiss the mother's application is denied as is his request to change venue to Onondaga County. His request for attorneys fees is denied without prejudice and referred to a hearing.
SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48
McNair v. Fenyn , 149 AD3d 747 (2d Dept 2017) (discussion of funding 529 accounts). D.S.C. v. P.C. , 2017 NY Misc. LEXIS 3803 (Sup.Ct. Monroe Cty 2017)(Dollinger, J.)