Summary
In Matter of Wood v. Wood, 105 AD3d 637 (1st Dept 2013), the parties never reached an agreement on how the child's college education expenses would be paid. The agreement did not require any set amount to be paid by either parent and the court held the plain language of the college education provision in the stipulation of settlement constituted nothing more than "an unenforceable agreement to agree."
Summary of this case from Bocka v. BockaOpinion
2013-04-25
In re William WOOD, Petitioner–Respondent, v. Andrea WOOD, Respondent–Appellant.
Greenberg Traurig, LLP, New York (Roy Taub of counsel), for appellant. Howard M. Lefkowitz, Chappaqua, for respondent.
Greenberg Traurig, LLP, New York (Roy Taub of counsel), for appellant. Howard M. Lefkowitz, Chappaqua, for respondent.
TOM, J.P., ACOSTA, ROMÁN, FEINMAN, CLARK, JJ.
Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about August 8, 2012, which denied respondent mother's objection to the Support Magistrate's order modifying an order of support, to the extent it awarded petitioner father a credit of 15% or $34.07 per week as an offset against his basic child support obligation for his payment of the child's college room and board expenses, unanimously modified, on the facts, to the extent of adjusting the credit to $28.95 per week, and otherwise affirmed, without costs.
The Support Magistrate properly awarded petitioner the credit toward his child support obligation, since “a noncustodial parent paying child support is entitled to a reduction in that support for the amounts contributed toward room and board expenses during periods when a child lives away from home” ( Powers v. Wilson, 81 A.D.3d 803, 803, 916 N.Y.S.2d 526 [2d Dept. 2011], lv. denied17 N.Y.3d 702, 2011 WL 2237325 [2011];see Azizo v. Azizo, 51 A.D.3d 438, 439, 859 N.Y.S.2d 113 [1st Dept. 2008] ). Respondent's argument that there is no mention or contemplation of a credit or offset to child support obligations in the stipulation of settlement is unpersuasive, since the parties never reached an agreement on how the child's college education expenses would be paid. Indeed, the plain language of the college education provision in the stipulation of settlement constituted nothing more than “an unenforceable agreement to agree” ( Schneider v. Jarmain, 85 A.D.3d 581, 582, 925 N.Y.S.2d 487 [1st Dept. 2011] ).
The order is modified to the extent indicated because the subject credit to petitioner was improperly calculated. It appears that the $34.07 amount was arrived at based upon the assumption that petitioner would be paying 100% of the child's room and board expenses. The child's annual expenses for room and board consists of $11,810, and petitioner is obligated to pay 85% of those expenses or $10,038.50. Accordingly, petitioner is entitled to a credit of 15% of this amount or $1,505.77 divided by 52 weeks, which amounts to $28.95 per week.