Abizadeh v. Abizadeh

• Decision Date: 21 March 2018
• Docket Number: Index No. 203117/09,2016–13480
• Citation: 72 N.Y.S.3d 563,159 A.D.3d 858
• Parties: Ramin ABIZADEH, appellant, v. Galit ABIZADEH, respondent.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 858

72 N.Y.S.3d 563

Ramin ABIZADEH, appellant,

v.Galit ABIZADEH, respondent.

2016–13480

Index No. 203117/09

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 20, 2018

March 21, 2018

Ramin Abizadeh, Roslyn Heights, NY, appellant pro se.

Law Offices of Seidner & Associates, P.C., Garden City, N.Y. (Matthew S. Seidner of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal from an order of the Supreme Court, Nassau County (Hope Schwartz Zimmerman, J.), entered December 7, 2016. The order, insofar as appealed from, in effect, denied those branches of the plaintiff's motion which were to hold the defendant in contempt of court for her alleged failure to comply with an order of that court dated July 12, 2013, to impose sanctions against nonparties Nicolette Barbarino and the Law Office of Alexander Potruch, LLC, to hold a hearing to determine the cost of the children's college expenses and to apportion those expenses between the parties, to award the plaintiff a credit for the cost of the children's college expenses, and to reduce the plaintiff's child support obligation.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiff's motion which was to hold a hearing to determine the amount of the children's college expenses and to apportion those expenses between the parties, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of the children's college expenses and for an apportionment of expenses between the parties thereafter.

The background of this action is stated in Abizadeh v. Abizadeh, 159 A.D.3d 856, 72 N.E.3d 566, 2018 WL 1404294 (Appellate Division Docket No. 2015–11360; decided herewith). Insofar as relevant to this appeal, in August 2016, the plaintiff moved to hold the defendant in contempt of court for her alleged failure to comply with an order of that court dated July 12, 2013, or to hold a hearing on the issue of contempt, to impose sanctions against nonparties Nicolette Barbarino and the Law Office of Alexander Potruch, LLC, to hold a hearing to determine the cost of the children's college expenses and to apportion those expenses between the parties, to award the plaintiff a credit for the children's college expenses, and to reduce the plaintiff's child support obligation. In the order appealed from, the Supreme Court, in effect, granted that branch of the plaintiff's motion which was to hold a hearing on the issue of contempt and denied those branches of the plaintiff's motion which were to hold the defendant in contempt of court, to impose sanctions against the nonparties, to hold a hearing to adjudicate the cost of the children's college expenses and to apportion those expenses between the parties, to award the plaintiff a credit for the children's college expenses, and to reduce the plaintiff's child support obligation. The plaintiff appeals from the denial of those branches of his motion.

Pursuant to Domestic Relations Law § 240(1–b)(c)(7), the court may direct a parent to contribute to a child's education, even in the absence of special circumstances or a voluntary agreement. The court may consider the circumstances of the case and the respective parties as well as the best interests of the child and the requirements of justice (see Frates v. Frates, 142 A.D.3d 582, 584, 36 N.Y.S.3d 505 ; Dougherty v. Dougherty, 131 A.D.3d 916, 918, 16 N.Y.S.3d 251 ; Powers v. Wilson, 56 A.D.3d 642, 642–643, 868 N.Y.S.2d 241 ). Here, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which sought a hearing to determine the parties' responsibilities with respect to the children's college expenses. Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine the amount of those expenses and to apportion them between the parties (see Dougherty v. Dougherty, 131 A.D.3d at 918, 16 N.Y.S.3d 251 ;...