Opinion
March 10, 1989
Appeal from the Supreme Court, Erie County, Forma, J.
Present — Doerr, J.P., Denman, Boomer, Balio and Davis, JJ.
Order unanimously reversed on the law without costs and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: In a separation agreement, plaintiff agreed to pay the college expenses of his children. The agreement did not expressly confer upon plaintiff the right to select the particular college either child would attend, and we reject plaintiff's claim that he had the unilateral right to do so. An award for college expenses, however, must be based upon reason and practicality, not mere desirability or the whim and caprice of the child (see, Heaney v Heaney, 93 Misc.2d 811, 814, mod on other grounds 69 A.D.2d 897). Factual issues were raised regarding plaintiff's ability to pay the full cost of his daughter's undergraduate education and whether the daughter's selection of a college was based upon factors relating to educational or career objectives. Special Term erred in directing plaintiff to pay $12,500 per year for his daughter's college education without conducting a hearing on those factual issues.
The court also erred in denying defendant the right to seek an upward modification in the sum fixed as plaintiff's responsibility should future circumstances warrant a change (see, White v. White, 61 A.D.2d 939, 940).