Opinion
00-00068
January 22, 2002
March 11, 2002.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County (Pessala, J.), dated December 5, 2000, as directed him to pay 100% of his son's college tuition and related expenses, granted the mother's application for an award of an attorney's fee in the sum of $4,250, and denied his application for credit for child support during the time his son was away from home attending college.
Donna B. Swanson, Massapequa, N.Y., for appellant.
Carla Maurer, Dix Hills, N.Y., respondent pro se.
A. GAIL PRUDENTI, P.J., FRED T. SANTUCCI, DANIEL F. LUCIANO, and ROBERT W. SCHMIDT, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The father contends that an oral modification of the parties' stipulation of settlement required him to pay only 50% of his son's college tuition and related expenses rather than 100%. However, the father failed to show new consideration to support the alleged oral modification (see, Schwartzreich v. Bauman-Basch, Inc., 231 N.Y. 196, 203; Estate of Anglin v. Estate of Kelley, 270 A.D.2d 853; cf., Sparer v. Sparer, 227 A.D.2d 613), and failed to show that the conduct of the parties was unequivocally referable to the oral modification (see, Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 343-344; Weissman v. Weissman, 173 A.D.2d 609, 610; Klein v. Jamor Purveyors, 108 A.D.2d 344, 348-349). Further, the father is not entitled to a child support credit for the time his son is away from home attending college where no such provision was agreed to by the parties in the stipulation setting forth his child support obligations (cf., Jablonski v. Jablonski, 275 A.D.2d 692; Sheridan v. Sperber, 269 A.D.2d 439; Imhof v. Imhof, 259 A.D.2d 666; Litwack v. Litwack, 237 A.D.2d 580; P. ST. J. v. P.J.T., 175 Misc.2d 417).
Finally, the Family Court providently exercised its discretion in granting the mother's application for an award of an attorney's fee (see, O'Shea v. O'Shea, 93 N.Y.2d 187, 193; DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881), particularly, where the parties expressly provided for such an award in their stipulation.