Opinion
No. 117 SSM 10.
Decided March 25, 2010.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered November 5, 2008. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, Queens County (Sidney Leviss, J.H.O.), entered after a nonjury trial, which had awarded plaintiff damages in the principal sum of $46,373.31, and (2) dismissed the complaint.
Plaintiff commenced the present action to recover the share of the college expenses of the parties' sons allegedly owed to her pursuant to a marital settlement agreement. The Appellate Division noted that parties' marital settlement agreement provided that "[a]ny expense of the children's education that will not be covered by the proceeds of [a certain trust] will be equally shared between the husband and wife," and that "[b]oth parties will contribute to their children's education at an accredited institution of higher learning in accordance with their means and abilities." The Court determined that plaintiff failed to produce any evidence as to the proceeds or balance of the trust available to cover the children's educational expenses, that no evidence was adduced concerning the means and abilities of the parties, and that, accordingly, plaintiff failed to establish a contractual entitlement to recovery of the sought-after college expenses pursuant to the terms of the agreement.
Washington v Washington, 56 AD3d 463, reversed.
Amy S. Nord, Valley Stream, for appellant.
Barry A. Washington, respondent pro se.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.
In this nonjury trial, the parties charted their own course, effectively removing from the case the question whether the trust funds were exhausted and thereby eliminating plaintiff mother's burden on this issue. The Appellate Division erred in holding that no evidence was adduced as to the means and abilities of the parties to contribute to their children's college education expenses. Such evidence was adduced, and we conclude as a matter of law that defendant father had sufficient means to contribute to his sons' college education expenses within the meaning of the parties' separation agreement. Defendant father's remaining arguments in support of affirmance are without merit.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.