Opinion
No. FA03 034 95 89 S
November 26, 2003
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT CODED 102 RE SUPPORT, AND PLAINTIFF'S MOTION FOR CONTEMPT CODED 102.02 RE ALIMONY
The plaintiff has filed a motion for contempt against the defendant alleging: (1) The defendant is in arrears in his educational expenses; (2) he is in arrears in his weekly support and alimony payments; and, (3) he is in arrears in his child support add-on payments.
Many of the facts that give rise to this motion are not in dispute. The parties were divorced in New York on December 12, 2001. The judgment of divorce entered in New York on December 12, 2001 incorporated by reference a stipulation of the parties that was entered into in the court record on June 5, 2001. That stipulation provided as follows:
1. ORDERED, ADJUDGED AND DECREED, that the parties will be responsible for all child support add-ons as that term is defined under the Child Support Standards Act proportionate to their respective income,
2. ORDERED ADJUDGED AND DECREED, that the parties will be responsible for any and all educational expenses incurred by the children in proportionate to their respective income,
3. ORDERED ADJUDGED AND DECREED, that the defendant will be obligated to confer with the Plaintiff relative to all major child rearing decisions which shall be defined as those relating to the health, education, and welfare of the children,
4. ORDERED ADJUDGED AND DECREED, that if there is a disagreement between the respective parties relative to a major child rearing decision, the Defendant will be empowered to make the final determination CT Page 13189
5. ORDERED ADJUDGED AND DECREED, that the Defendant will afford the Plaintiff adequate notice prior to making any major child rearing decision
6. ORDERED ADJUDGED AND DECREED, that adequate notice relative to major child rearing decisions will be defined as the Defendant affording the Plaintiff appropriate time within which the parties may discuss the major child rearing issues prior to Defendant making a decision with a full recognition that emergency situations may well arise preventing the Defendant from providing adequate notice to the Plaintiff.
In the New York judgment the mother was the defendant and the father was the plaintiff. The first major dispute between the parties has to do with the order "that the parties will be responsible for any and all educational expenses incurred by the children in proportion to their respective income."
Under that provision, the mother seeks to have the father held responsible for tuition for the minor child Holly for the calendar years 2001 and 2002 for attendance at parochial school, and for expenses incurred for the minor child Catherine for the period 2002-03 for school uniforms and application fees for attendance at parochial school, as well as for other uniform costs, application fees and miscellaneous costs for the period of 2001-02 for attendance at parochial school, as well as tuition costs for both children for 2003-04 for attendance at parochial school. Plaintiff incurred tuition expenses for the minor child Holly for 2001-02 in the amount of $2,380; tuition expenses for the minor child Holly for the calendar year 2002-03 in the amount of $2,750; and tuition expenses for the current year of 2003-04 for both Holly and Catherine combined, in the amount of $5,025. She incurred uniform expenses for Holly for 2001 in the amount of $302; miscellaneous expenses for Holly for milk, gym uniform and application fee totaling $275; and preschool fees for Catherine for 2002-03 totaling $2,514. All of these expenses were incurred for attendance at parochial school. The defendant takes the position that his responsibility for paying for "all educational expenses incurred by the children" does not include parochial school expenses. In arguing that the father is responsible for his share of the parochial school expenses for the children, the mother cites Matter of Hawley v. Doucette, 43 App.Div.2d 713, Cooke v. Pieters, 123 Misc.2d 351 (1984), Matter of Harp v. McCann, 97 App.Div.2d 868, Cassano v. Cassano, 203 App.Div.2d 563, and Boden v. Boden, 42 N.Y.S.2d 210 (1977).
In Hawley, supra, the separation agreement between the parties provided that the father "shall endeavor to furnish a college education for each child, if he is in a financial position to do so at the appropriate time." The mother subsequently filed a proceeding to require the father to pay for the costs and expenses of the daughter's college education. The Hawley court held, in part, as follows:
Although the separation agreement provides that appellant" shall endeavor" to pay the college expenses of the children, that term does not contractually bind him to so provide. The furnishing of a private college education to one's children is not a necessary for which he is obliged to pay unless" unusual circumstances" warrant such a holding . . . Although the providing of such an education may be considered a moral obligation, a court order making such payment a matter of compulsion is unwarranted . . . A father may, however, by express and enforceable agreement, bind himself to make such payment. But the facts obtaining here do not show such a promise. (Emphasis provided.)
In Matter of Cooke, the separation agreement between the parties provided that "the husband agrees to pay the cost of college tuition for Paige . . . to the extent he is able at that time." The Cooke court held, in part, as follows.
It is clearly the present law of this jurisdiction that "absent special circumstances" or a "voluntary agreement," the furnishing of a private school college education to a minor child is not regarded as a necessary for which a father can be obliged . . . On the contrary, a clear reading and interpretation of the words "husband agrees to pay the cost of college tuition" leaves little to the imagination and true intent of the parties, at the time the agreement was entered into, and the respondent's legal obligation appear blatant. In enforcing the terms therein, as in the instant proceeding, the court stated that by entering the agreement, the father "effectively consented to having the cost of a college education considered as part of his support obligation."
Hawley and Cooke both involved separation agreements that specifically mentioned college expenses. In Matter of Harp, under the terms of the separation agreement, the respondent agreed to bear some responsibility for a future college tuition, with the parties agreeing to share equally "provided that the husband shall consent on the choice of the college." The Harp court held, in part, as follows:
By entering into the agreement containing the provision concerning college tuition, respondent effectively consented to having the cost of a college education considered as a part of his support obligation.
The plaintiff mother also cites Boden, supra. In Boden, the separation agreement provided that the father would "pay for the college education of said child and to that end shall cause a life insurance endowment policy in the principal sum of $7,500 to be written on his life, to mature fifteen years from date hereof, and to pay all premiums thereon. The proceeds of such policy shall be used for the purpose of such college education . . . such policy shall provide that the proceeds are to be applied for such college education with the further proviso that if said child shall die, or shall attain the age of 21 years without having attended college, then the proceeds of such policy shall be paid to the husband."
The mother subsequently moved to California where she obtained a final judgment of divorce. That judgment contained no provision for college support nor was the New York separation agreement expressly incorporated or merged into that decree. The Boden court held, in part, as follows:
Although the courts have the power to modify the provisions pertaining to child support in a separation agreement, on the record in the case now before us it was an abuse of discretion for the Appellate Division to increase the amount of child support to be paid by the father. The agreement expressly provided for an amount which the parties felt was adequate for child support and manifests an understanding that the child might pursue a college education. Specific provision was made for a fund to cover those expenses. Further there has been no showing of an unforeseen change in circumstances, or that the agreement was not fair and equitable when entered into. The facts and circumstances here present did not warrant a modification of the child support provision of the separation agreement and it was error for the Appellate Division to do so. The Family Court was correct in denying the petition. (Emphasis provided.)
In Roome v. Roome, 87 App.Div.2d 798, 450 N.Y.S.2d 381 (1982), the parties had entered into a stipulation that was incorporated into the divorce decree. That stipulation provided, in part, as follows:
f) Notwithstanding the foregoing, if a child, when reaching 21 years, shall be attending college on a full-time basis, and is unmarried and otherwise unemancipated, support for that child shall continue until the child's college education terminates, is no longer full-time or the child reaches the age of 22 years, whichever occurs first. 6. The defendant agrees that he shall continue to pay all reasonably necessary expenses for the private schooling of each of the children, (in both elementary and secondary schools, as the case may be) . . . When a child is in actual attendance at a residential school or college and the father is paying the child's food and lodging expenses there, the child support payment shall be reduced to $60.00 per week [from $75.00 per week], for such period of attendance." Nowhere in the stipulation is there an agreement between the parties that the plaintiff waived her right to seek payment of college expenses from defendant.
The Roome court interpreted that stipulation by stating, in part, as follows:
A fair interpretation of the stipulation and judgment is that the stipulation did not bind either party to pay college expenses and that either party might seek later an order compelling payment.
Those decisions in which the New York courts have held that a parent is responsible for paying for private school or college expenses by virtue of having entered into an agreement to do so involved agreements that made specific reference to private school or college. In this case, the stipulation between the parties does not refer to private school or college. This court therefore concludes that the stipulation does not bind the defendant to pay for any of the parochial school expenses that have been incurred by the plaintiff because there was not an express agreement that referred to private or parochial school expenses for which the father agreed to pay.
The plaintiff also seeks to have the defendant responsible for paying for the parochial school expenses as the result of a New York statute that requires a party to pay for college expenses where special circumstances exist and the fact is relevant to the determination of "special circumstances" are threefold: (1) the educational background of the parent; (2) the child's academic ability; and (3) the father's financial ability to provide the necessary funds. The burden of proving these special circumstances rests upon the plaintiff. One of the New York cases that deals with the issue of educational expenses is in Matter of Cassano.
In Matter of Cassano, the parties had not entered into an agreement for the father to pay private or parochial school tuition. The issue was whether under the Child Support Standards Act (CSSA), it was appropriate to order the parties to pay their prorated share of their combined income for parochial school education. The Cassano court held, in part, as follows:
The relevant provision of the CSSA with respect to educational expenses is: "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" (Domestic Relations Law § 240 Dom. Rel. [1-b][c][7]).
Traditionally, we have held that absent a voluntary agreement, a parent is not obligated to pay for the cost of a child's private schooling unless special circumstances exist . . . The relevant factors in making such a determination were said to be: (1) the educational background of the parents, (2) the child's academic ability, and (3) the parents' financial ability to provide the necessary funds . . .
One of the factors which must be considered in a case of this nature is whether, and to what extent, there exists a real difference in quality between the education furnished by the public schools, on the one hand, and that which is available at the private school which the child in question attends or plans to attend, on the other . . .
The record in this case does not indicate the existence of any circumstances which would justify the court's ruling. There is nothing to indicate that the circumstances of the respective parties would justify this result, nor is there anything which would lead us to believe that the best interests of the child require that the father provide educational funds for private high school education . . . Moreover, there is nothing in the record which would indicate that the education provided by the private school in question is of a better quality than that provided by the public schools, and it would be improper to conclude that public schools are automatically presumed to be inferior to private schools. Furthermore, there is no basis for the court's determination that merely because the parties' only other child has attended private school for a portion of her education, that it would automatically be beneficial to the other child to be provided a like education. Each child is different, and it would be improper to assume that whatever is good for one child is automatically good for the other children in the family.
Moreover, it should be noted that both the language of the CSSA and the above-quoted language in Manno v. Manno ( supra), were merely a carryover of the language of Domestic Relations Law § 240(1), prior to the enactment of the CSSA in 1989. Domestic Relations Law former § 240(1) which authorized a court to make a "direction, between the parties, for the custody, care, education and maintenance of any child of the parties, as, in the court's discretion, justice requires, having regard [for the circumstances of the case and of the respective parties and to the best interests of the child." It is clear, then, that neither the CSSA nor Manno v. Manno ( supra) was meant to represent a radical shift away from the traditional rule of "special circumstances."
The record before us is deficient and is devoid of proof which would satisfy the inquiry which must be made under the relevant provisions of CSSA and this Court's decision in Manno v. Manno ( supra). We, therefore, conclude that, under these circumstances, the Family court improvidently exercised its discretion in modifying the husband's child support obligations relative to the cost of private education.
The dissenting opinion held, in part, as follows:
Educational expenses are now a component of a parent's basic child support obligation (see, Family Ct Act § 413 Fam.Ct.Act [1][c][7]) and, in determining that basic support, the court must consider the standard of living the child might have enjoyed had the marriage not failed (see, Family Ct Act § 413 Fam.Ct.Act [1][f][3]).
The parties in this case sent their older daughter to a Roman Catholic school from the fifth through eighth grades, and then to Catholic High School through the eleventh grade, when she left for personal reasons. Clearly, this indicates a preference by the parents to provide a parochial school education for their children. It is reasonable to assume that but for the divorce, the parties would have also sent their son to a parochial school.
Furthermore, this preference for private religious school education reflects not only the parents' regard for the more individualized attention commonly offered by private schools, but also this family's emphasis on religious values as an important component of their family life and value structure. This Court has indicated its respect for such preferences and found them persuasive in other cases where a parents' obligation to pay for private parochial school education has been an issue. As this court held in Keehn v. Keehn (137 A.D.2d 493, 497-98), "In light of the family's emphasis on religious training and the fact that the defendant has provided private religious education for his children in the past, we find it was proper to direct the defendant to continue to pay for such education until each child graduates from high school" (accord, Valente v. Valente, 114 App.Div.2d 951).
This court finds that the mother did attend parochial school herself for an unspecified period of time and that the father did not attend parochial school. This court finds that while the parties resided together, they did not have an emphasis on religious training. This court finds that the plaintiff has failed to prove the existence of special circumstances and therefore denies her request that the defendant be responsible for paying for the parochial school expenses that she has incurred for the two children. This court further finds that the plaintiff has failed to prove that it is in the best interests of the children that they attend parochial school.
The parties are also in dispute as to whether the defendant is in arrears in his weekly support and alimony obligations. From the evidence presented, the court finds that the defendant is current in his weekly support and alimony obligations.
The parties are also in dispute regarding the defendant's obligation to pay for his proportionate share of daycare costs. N.Y. Fam Ct. § 413 and Domestic Relations Law § 240 Dom.Rel. (1-b) (c) ("CSSA") at subsection (4) provides:
Where the custodial parent is working, or receiving elementary or secondary education, or higher education, or vocational training which the court determines will lead to employment, and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income. Each parent's pro rata share of the child care expenses shall be separately stated and added to the sum of subparagraphs two and three of this paragraph." (Emphasis added.)
This court finds that the weekly expense of $190 per week per child to attend YMCA camp for a six-week period, for a total cost of $2,280, was a reasonable cost for attending the YMCA camp. The court finds, however, that the plaintiff has failed to prove that the full six weeks of expenses were incurred while the plaintiff, as the custodial parent, was working. This court finds that four weeks is the most for which the plaintiff has proven that the YMCA expense was incurred in order for her to be working, for a total of $1,440. The defendant is responsible for paying 89 percent of that amount or $1,281.60. He is to pay that amount by January 15, 2004.
AXELROD, JUDGE TRIAL REFEREE.