Caroline Cimons, Respondent, v Wayne Cimons, Appellant.
Second Department, Supreme Court of the State of New York, Appellate Division
June 17, 2008
53 A.D.3d 125 | [861 NYS2d 88]
Goldschmidt & Genovese, LLP, White Plains (Rhona M. Bork of counsel), for appellant.
Candi J. Fulop, White Plains (Therese R. Malach of counsel), for respondent.
Angiolillo, J.
This appeal requires us to determine whether a provision in a stipulation settling a divorce action that sets forth the parties’ obligations to provide for the future college expenses of their children is subject to the Child Support Standards Act (hereinafter the CSSA) and, if not, whether that provision nonetheless survives a determination that the basic child support provisions of the stipulation violate the CSSA. We hold that, under the circumstances presented here, the obligation to provide for the future college expenses of the children is not part of the parties’ basic child support obligation and therefore is not subject to the CSSA requirement that any deviation from statutorily mandated child support obligations must be recited and explained in a stipulation of settlement. Moreover, even though the parties violated the CSSA by failing to recite and explain in their stipulation why they deviated from CSSA standards in providing basic child support, and the basic child support provisions were properly vacated as a consequence, the provision concerning future college expenses survives the vacatur, and is enforceable. Accordingly, we affirm the order of the Supreme Court insofar as appealed from.
The parties entered into a stipulation of settlement (hereinafter the stipulation), set forth on the record at a hearing on May 31, 2006, which was subsequently incorporated but not merged in a judgment of separation. Subsequent to the entry of the judgment, the father moved to vacate the child support and related provisions of the stipulation, alleging that the stipulation
A parent has an obligation to provide support for his or her child‘s basic needs, an obligation which is addressed in
The primary components of the CSSA were enacted pursuant to Laws of 1989 (ch 567, § 7). The present version of
The legislative history, however, does include a Memorandum of the State Executive Department relating to the enactment of the CSSA (1989 McKinney‘s Session Laws of NY, at 2208 et seq.). The basic premises underlying the statute are that
“[b]oth parents have a responsibility to contribute to the economic well-being of their children . . .
“[c]hildren should not unfairly bear the economic burden of parental separation [and] . . . [c]hildren should be protected as much as possible from the overall decline in living standards that results from parents maintaining two households” (Mem of St Exec Dept, 1989 McKinney‘s Session Laws of NY, at 2208).
The memorandum explained that the bill, inter alia:
“(c) [c]reates a step-by-step child support methodology, which includes use of a child support percentage (based upon number of children), to arrive at the basic child support obligation of the parents . . . [and]
“(d) [r]equires consideration as a part of the basic child support obligation, of the custodial parent‘s present and future child care needs when the custodial parent is working, or receiving . . . education . . . Reasonable child care expenses are to be prorated in the same proportion as each parent‘s income is to the total parental income” (Mem of St Exec Dept, 1989 McKinney‘s Session Laws of NY, at 2209).
The memorandum further indicated there were three reasons why child care expenses were set out as a distinct element: (1) they are a large variable expense that occurs only in some circumstances; (2) when such expenses are incurred they can represent an inordinate proportion of the cost of raising a child; and (3) the burden of child care expenses can be a disincentive for a custodial parent to seek employment.
In contrast to the add-ons for child care expenses and future reasonable health care expenses, which must be awarded and
“Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider” (emphasis added).
Where the parties’ stipulation or agreement fails to comply with the requirements of
Nonetheless, the invalidity of the basic child support obligation, due to a deviation from the CSSA standards without full compliance with
The determination as to which additional aspects, if any, of the parties’ stipulation must be vacated along with the basic
Part of the problem in differentiating among and between the different obligations is the language utilized in the statute. As used in the Domestic Relations Law,
” ’ [b]asic child support obligation’ shall mean the sum derived by adding the amounts determined by the application of subparagraphs two and three of paragraph (c) of this subdivision [two is the calculation of the first $80,000 of combined income and three is the calculation based on combined income in excess of $80,000] except as increased pursuant to subparagraphs four [child care expenses], five [unreimbursed health expenses], six [expenses for child care where the custodial parent is looking for work,] and seven [education expenses] of such paragraph” (
Domestic Relations Law § 240 [1-b] [b] [1] ).“On the other hand, ‘[c]hild support’ shall mean a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years” (
Domestic Relations Law § 240 [1-b] [b] [2] ).
The Practice Commentaries to Domestic Relations Law § 240, written by Justice Alan D. Scheinkman, contain the following observation immediately following a reference to “basic child support” and “child support“:
“Nevertheless, notwithstanding this murky statutory language, basic child support has become understood to mean the regular periodic payment of support made by the noncustodial parent to the custodial parent. The obligations for health care, child care, and educational expenses are commonly referred to as ‘add-on’ expenses . . .
“Thus, child support consists of two distinct elements: (a) a regular periodic payment, or basic support; and (b) contribution towards ‘add-on’
expenses, which are additional items not encompassed in the regular, basic child support payment” (Scheinkman, Practice Commentaries, McKinney‘s Cons Laws of NY, Book 14, Domestic Relations Law § 240, at 250).
The add-ons for unreimbursed health care expenses and child care expenses incurred by a working custodial parent, set forth in
Unlike child care expenses and unreimbursed health care expenses, however, education expenses are not directly connected to the basic child support calculation. Initially, education expenses differ from these other expenses in that, in the absence of an agreement to pay education expenses, the determination as to whether or not such expenses will be paid is within the court‘s discretion (see
An award for private schooling must be made with due regard for the circumstances of the case, the circumstances of the respective parties, and the best interests of the child (see Cohen v Cohen, 21 AD3d 341 [2005]). These statutory standards are applicable to an award for college expenses (see Matter of French v French, 13 AD3d 624 [2004]), as is a consideration of “the requirements of justice” (Matter of Holliday v Holliday, 35 AD3d 468, 469 [2006]). These same principles also inform the determination as to how to apportion any college expenses that
The entirety of the stipulation should be considered in determining whether the parties’ agreement evinces that trade-offs were made which involved the basic child support figure. In such a situation, expenses that are not directly connected to the CSSA calculation, or even to child support, may be so closely intertwined with the basic child support provision as to require vacatur. Thus, in Farca v Farca (271 AD2d 482 [2000]), the wife waived maintenance and equitable distribution of property, upon the understanding that she would receive a certain level of child support. When the court vacated the basic child support provision, it vacated all of the financial provisions of the stipulation and judgment of divorce. The same remedy was applied in Lepore v Lepore (276 AD2d 677, 678 [2000]), where we held that the provisions of the parties’ agreement regarding maintenance and financial obligations for college expenses were so “closely intertwined” with the basic child support provisions as to require those provisions to be vacated along with the basic child support provisions.
In contrast, we held in Warnecke v Warnecke (12 AD3d 502 [2004]), that the record did not support a finding that the maintenance provisions of a stipulation were closely intertwined with the child support provisions. We reached the same result in Toussaint v Toussaint (270 AD2d 338 [2000]), where we held that the entire stipulation did not have to be vacated, but only those provisions of the stipulation as failed to comply with the requirements of the CSSA.
In Toussaint, however, the provisions relating to educational and health costs were vacated along with those relating to basic child support. The father in Toussaint had agreed to pay all health expenses, including costs of a health insurance policy, as well as medical, dental, nursing, ophthalmologic, orthodontic, and every other similar expense, and to pay all tuition and related
The instant matter, however, falls within the ambit of those cases that have clearly stated that the tuition expense aspect of a college education is distinct from basic child support. “As for the tuition component of college expenses, tuition is an add-on educational expense which is considered separately from the initial calculation of child support for basic need” (Tryon v Tryon, 37 AD3d 455, 457 [2007]). “Such a credit [against child support payments] should not be calculated based on the cost of college tuition, which is beyond the realm of what is normally considered ‘child support’ ” (Lee v Lee, 18 AD3d 508, 512 [2005]; see Matter of Dorcean v Longueira, 44 AD3d 770 [2007]; Wortman v Wortman, 11 AD3d 604 [2004]; Guryn v Guryn, 308 AD2d 564 [2003]).
The parties’ stipulation, insofar as it pertains to their support for their children‘s attendance at college, recites as follows:
“The parties further acknowledge, each to the other, that it is their anticipation that each of their children attends college. And in this regard, the parties agree to contribute pro rata to income to the minimum of a SUNY education. That is State of New York education for a New York State resident for each child and shall contribute more than that minimum, if possible, based upon their respective financial circumstances at the time each child makes application to college. College expenses with respect to the parties’ obligation, to pay for same pro rata to income is defined as including but not limited to tuition, room and board, mandatory books, supplies and fees, pre-
college testing classes and actual testing, such as the SATs, scholastic aptitude tests and reasonable number of applications to colleges for purposes of the child or children reviewing campuses for purposes of making a final decision with respect to the selection of college.”
To the extent that the commitment to meet future college expenses addresses room and board, the agreement does not deviate from the CSSA as it provides that the parties will contribute to such expenses pro rata to income. The stipulation also includes extensive provisions as to how the parties are to deal with various custodial funds that have been earmarked for college education expenses, including a recital that such funds would be utilized in the first instance before triggering the parties’ obligation to contribute to college expenses proportionally based on their income.
There is nothing in the record that would support a finding that the father agreed to pay a share of college expenses as a trade-off against some other expense. When the parties agreed to equitable distribution and traded off certain assets, the stipulation directly addressed those trade-offs. Thus, the wife received sole title to the marital residence in exchange for waiving any claim to the husband‘s pension, IRA, or deferred compensation account. Similarly, the wife waived any claim to certain stock in exchange for the husband‘s waiver of any claim to a joint bank account.
Additionally, the provisions of the parties’ stipulation regarding college expenses are distinguishable from those provisions of the stipulation based upon the calculation of basic child support. In particular, the stipulation provides: “Mr. Cimons shall pay child support for the benefit of the children and to the age of 21 or 22, if in college.” ” ‘In the absence of a voluntary agreement, a parent may not be directed to pay support or to contribute to the college education of a child who has attained the age of 21 years’ ” (Gibbons v Gibbons, 31 AD3d 605, 606 [2006], quoting Matter of Calvello v Calvello, 20 AD3d 525, 527 [2005]). “A parent is not liable for the support of a child who has reached the age of 21, unless there is an express agreement to pay such support” (Ciampa v Ciampa, 47 AD3d 745, 748 [2008]). The father‘s agreement to support his children and contribute to their college education expenses beyond the age of 21 years inures primarily to the benefit of the three children. As it is the
In Fasano v Fasano (43 AD3d 988 [2007]), we found that the parties to the relevant agreement did not opt out of the CSSA standards with respect to basic child support, but that a cost-of-living adjustment (hereinafter COLA) included in the agreement represented potential future deviations from the CSSA basic child support obligation. The remedy was to vacate the COLA provision, while the basic child support provision of the agreement was not vacated. Similarly, the vacatur of the basic child support provisions of the stipulation here does not warrant the vacatur of the provisions respecting college education expenses.
The parties’ stipulation in this case dealt with their commitment to meet their children‘s college expenses in an extensive provision which was separate and discrete from the child support provision. This case is unlike Toussaint, where the reference to future college expenses was but one phrase in a long list of health and education expenses added on to the child support obligation. Here, by contrast, the parties separately addressed their commitment that their children attend college, by providing that they would share, pro rata, at a minimum, the costs of a State University of New York education, that they would contribute more than that minimum if able, that certain custodial accounts designated for college expenses would be applied to the college expenses prior to the parties’ obligation to make pro rata contributions, and that any surplus in such custodial accounts would “spill over” from child to child.
The provisions of the parties’ stipulation relating to future college expenses were thus separate and distinct from the provisions relating to basic child support. Those two discrete sets of provisions were not closely intertwined (see Warnecke v Warnecke, 12 AD3d 502 [2004]; cf. Fasano v Fasano, 43 AD3d 988 [2007]). Accordingly, the Supreme Court properly denied that branch of the father‘s motion which was to vacate the separate provisions of the stipulation that related to the
Spolzino, J.P., Dillon and Dickerson, JJ., concur.
Ordered that the order is affirmed insofar as appealed from, with costs.