Opinion
April 26, 1999
Appeal from the Supreme Court, Nassau County (Goldstein, J.).
Ordered that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and a new determination in accordance herewith.
In reviewing the application of the mother, the Supreme Court incorrectly applied the "unanticipated and unreasonable change in circumstances" standard set forth in Boden v. Boden ( 42 N.Y.2d 210). Although the parties' stipulation of settlement was silent as to the costs of college, this does not necessarily mean that an agreement was reached pursuant to which college costs would not constitute a component of the parties' obligation to pay child support ( see, Romans v. Romans, 203 A.D.2d 549). Thus, the appropriate standard by which the mother's application should be reviewed is the discretionary one found in Domestic Relations Law § 240 (1-b) (c) (7) pursuant to which the court must consider the circumstances of the respective parties, the best interests of the child, and the requirements of justice ( see, Manno v. Manno, 196 A.D.2d 488).
Under the particular circumstances of this case, including the absence of any explanation in the record as to how the college expenses of the parties' daughter Jennifer have thus far been met, the matter should be remitted to the Supreme Court for a hearing and a new determination. Any award of child support relative to college costs should be made retroactive only to the date of the mother's application ( see, Domestic Relations Law § 240; 236 [B] [7] [a]).
Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.