594 N.Y.S.2d 379 | N.Y. App. Div. | 1993
Appeals (1) from an order of the Family Court of Albany County (Tobin, J.), entered October 22, 1991, which, inter alia, partially granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, to direct respondent to contribute to the private school tuition of the parties’ child, and (2) from an order of said court, entered February 4, 1992, which granted said application and directed respondent to pay one half of the private school tuition of the parties’ child.
On June 26, 1987 the parties executed a written separation agreement in which, inter alia, they agreed to "joint custody for all legal concerns including but not limited to equal say in the education” of Brendan, the sole child of the marriage born July 3, 1985. Physical custody was given to respondent with visitation rights to petitioner. Subsequently by stipulation in 1989, physical custody was divided equally. The parties were divorced on November 16, 1989. In 1990, when Brendan became of age, respondent registered him in Castleton Elementary School in the Schodack Central School District in Rensselaer County. Several months later petitioner registered
Thereafter, on April 25, 1991, petitioner commenced this proceeding seeking an order compelling respondent to contribute to the tuition costs. After a hearing, the Hearing Examiner directed respondent to pay one half of the private school tuition up to a maximum of $1,000 per school year. Petitioner filed objections challenging the limitation as inadequate, in response to which respondent filed cross objections arguing that the determination was an abuse of discretion in the absence of proof of special circumstances justifying the requirement that he pay the costs of private schooling. Family Court, in an October 22, 1991 order, relied upon the earlier in-court stipulation and denied respondent’s cross objections, remitting the matter to the Hearing Examiner for clarification of the $1,000 limitation on respondent’s share of the tuition. In amended findings of fact and conclusions of law, the Hearing Examiner found the annual tuition costs to be approximately $4,000 but nevertheless continued the previous limitation of $1,000 annually. In a February 4, 1992 order, Family Court sustained petitioner’s objections "to the extent that respondent shall pay one half the child’s educational expenses”. Respondent has appealed from both the orders of October 22, 1991 and February 4, 1992, contending that it was error to require contribution to private educational expenses in the absence of a showing of special circumstances.
It is well settled that absent a voluntary agreement between the parties regarding the financing of a child’s private school education, a parent may not be directed to contribute toward such expense unless special circumstances exist (Matter of Howard v Howard, 186 AD2d 132; Cooper v Farrell, 170 AD2d 571). Not only do the circumstances of respondent’s consent to
Levine, Mahoney, Casey and Harvey, JJ., concur. Ordered that the orders are reversed, on the law and the facts, without costs, and petition dismissed.