Cheruvu v. CheruvuCheruvu v. Cheruvu
In this action for divorce, the parties entered into an oral stipulation on the record in open court on March 28, 2007, resolving, among other things, issues of child custody, child support, maintenance and equitable distribution. As pertinent to this appeal, the stipulation provided that the parties would share joint legal custody of their two minor children (born in 1999 and 2000), that defendant (hereinafter the husband) would be responsible for payment of all tuition expenses for the children’s primary and secondary school education and that the husband would pay to plaintiff (hereinafter the wife) a $250,000 distributive award within 30 days of entry of a judgment of divorce, as well as child support in the amount of $6,000 per month and durational maintenance in the amount of $4,000 per month commencing April 1, 2007. One month later, at a conference in Supreme Court concerning the application of the husband’s attorney to be relieved as his counsel, the husband’s new attorney advised the court that he intended to make an application to vacate the stipulation. Supreme Court orally directed that such application be made within 60 days. However, the court advised the husband that the stipulation remained in effect and that his compliance with its terms was required unless and until the stipulation was actually vacated by the court.1
In August 2007, the wife moved by order to show cause for the entry of a money judgment to include the $250,000 distributive award, $2,000 for the children’s tuition at Albany Academy and $23,500 in maintenance payments, all of which were unpaid, as well as any arrears that accrued while the motion was pending. In addition, the wife sought an award of counsel fees and expenses pursuant to
We perceive no error in Supreme Court’s award to the wife of a money judgment pursuant to
However, we disagree with the wife’s contention that she was also entitled to a money judgment for amounts the husband failed to pay for the children’s tuition at Albany Academy for the 2007-2008 academic year. The parties’ stipulation provided that defendant would be required to pay “all primary and secondary school education expenses limited to tuition for and on behalf of the parties’ two children,”2 and they expressly acknowledged that the children were attending Albany Academy at that time. While placing the stipulation on the record, the wife’s counsel later clarified that the parties had “specifically agree[d] . . . that for the time being, it is appropriate that the children continue to attend the Albany Academy” (emphasis added). A month later, the husband indicated his concern regarding his obligation to pay private school tuition for another year and claimed that the stipulation did not specifically require the children to continue to attend Albany Academy. He also expressed his belief that it is in the children’s best interests to attend the public schools in the school district of their resi
Where a court must interpret a disputed term of a divorce agreement, the inquiry ” ‘should not be limited to the literal language of the agreement, but should also include a consideration of whatever may be reasonably implied from that literal language’ ” (Stewart v Stewart, 266 AD2d 702, 704 [1999], quoting Hewlett v Hewlett, 243 AD2d 964, 966 [1997], lvs dismissed 91 NY2d 887 [1998], 95 NY2d 778 [2000]). Here, the parties failed to include in the stipulation any indication that they anticipated that the children would continue to attend Albany Academy—or any other private school—in future school years. Significantly, they clearly envisioned that, as part of their joint legal custody arrangement, decisions regarding the children’s education would be made by agreement of both parties. Thus, Supreme Court’s finding that “neither party was obligating himself or herself to paying the costs of attending any particular primary or secondary school including Albany Academy” was a reasonable inference based upon the stipulation as a whole. Moreover, inasmuch as the husband made the wife aware of his opposition to the children’s continued attendance at that school, we cannot conclude that the responsibility for taking the initiative to attempt to reach an agreement—or, in the absence of an agreement, to seek a court determination as to where the children should attend school—fell on the husband any more than on the wife.
Finally, we are unable to determine whether Supreme Court abused its discretion in denying the wife’s request for counsel fees pursuant to
The parties’ remaining contentions have been considered and found to be without merit.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied plaintiff’s motion for counsel fees; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.