Apjohn v. Lubinski

Decision Date20 February 2014
Citation981 N.Y.S.2d 166,2014 N.Y. Slip Op. 01231,114 A.D.3d 1061
PartiesIn the Matter of Maureen APJOHN, Formerly Known as Maureen Lubinski, Respondent, v. David E. LUBINSKI, Appellant. (And Another Related Proceeding.)
CourtNew York Supreme Court — Appellate Division


David E. Lubinski, Edgewater, Florida, appellant pro se.

Jon Kosich, Greenville, for respondent.



Appeal from an order of the Family Court of Greene County (Tailleur, J.), entered February 22, 2013, which, in a proceeding pursuant to Family Ct. Act article 4, denied respondent's objections to the order of a Support Magistrate.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of a son (born in 1993). In 1994, the parties executed a separation agreement which was incorporated, but not merged, into their judgment of divorce. In July 2011, the mother commenced this proceeding seeking an upward modification of child support and alleging that the father had failed to pay health insurance costs and college expenses for the son as required by the agreement. The father separately petitioned for, among other relief, a downward modification of support and reimbursement for alleged past overpayments. Following a hearing, a Support Magistrate issued an order and findings of fact to which the father objected. After Family Court sustained some of his objections, the Support Magistrate issued supplemental findings of fact and an order that, among other things, directed the father to pay specified college expenses and decreased his obligation for health insurance expenses. Family Court denied the father's further objections, and the father appeals.

The father first contends that Family Court erred in several respects in determining his obligation to contribute to the son's college expenses. The parties' agreement contains a “cap” provision; each party is required to contribute to the son's undergraduate college costs in an amount not to exceed half of the cost of tuition, room and board at a college or university that is part of the State University of New York (hereinafter SUNY). The agreement further provides that the son must apply to “the said college or university” for all possible grants, scholarships and financial aid before either party is obliged to pay any college costs. The son applied for and obtained financial aid from the private college where he enrolled in September 2011, as well as an outside scholarship. However, the father contends that the agreement required the son to apply to a SUNY institution for financial aid, and that as he did not do so, the father has no obligation to contribute anything toward his expenses. We disagree.

Ambiguity in a separation agreement is resolved, as with any contract, by determining the parties' intent from within the instrument's four corners, if possible, and otherwise from extrinsic evidence ( see Fecteau v. Fecteau, 97 A.D.3d 999, 999–1000, 949 N.Y.S.2d 511 [2012];Bjerke v. Bjerke, 69 A.D.3d 1042, 1044, 892 N.Y.S.2d 646 [2010] ). In doing so, [t]he court is not limited to the literal language of the agreement, but should also include a consideration of whatever may be reasonably implied from that literal language” ( Desautels v. Desautels, 80 A.D.3d 926, 928, 915 N.Y.S.2d 337 [2011] [internal quotation marks and citation omitted] ). In resolving the ambiguity as to whether the requirement to apply to “the said college or university” for financial aid refers to a SUNY institution or to the college attended by the son, we note that the agreement does not require the son to attend or apply for admission at a SUNY school, and the father did not show that it is possible to apply to a SUNY institution for financial aid without also applying for admission. Further, the contract provides that the parties “expect[ ] and desire” the son to pursue higher education, and it is a reasonable inference that they intended to facilitate this mutual goal not only by contributing to the cost, but also by ensuring that any available financial aid would be secured from the institution attended by the son to make it as affordable as possible. Accordingly, we agree that the son's financial aid application to the college where he enrolled was sufficient to trigger the father's contractual obligation to contribute to the son's expenses.

The agreement is further ambiguous as to whether financial aid obtained by the son is to be applied to reduce the parties' contributions, or to the son's remaining expenses. For reasons similar to those just discussed, we find that Family Court properly reduced the father's tuition obligation by the amount of the son's outside scholarship—a relatively small, one-time award—but not by the amount of a four-year grant received directly from the private college. As applied here, the privategrant, which was calculated in accord with that school's tuition cost rather than the lower tuition at a SUNY school, is sufficiently large such that setting it off against the father's contribution would result in completely negating any tuition obligation from him, while leaving the son with a substantial bill. The agreement cannot reasonably be interpreted to require this result, which is inconsistent with the parties' stated desire for the son to obtain higher education and their explicit intent to contribute to this expense.

In view of this clearly-expressed intent, we further find that Family Court erred in subtracting loans obtained by the son from the amount to be contributed by the parties. The agreement requires the son to apply for “scholarships, grant...

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13 cases
  • Sprole v. Sprole
    • United States
    • New York Supreme Court Appellate Division
    • December 29, 2016
    ...66 [2009], quoting 145 A.D.3d 1371Baraby v. Baraby, 250 A.D.2d 201, 205, 681 N.Y.S.2d 826 [1998] ; see Matter of Apjohn v. Lubinski, 114 A.D.3d 1061, 1064, 981 N.Y.S.2d 166 [2014], lv. denied 23 N.Y.3d 902, 2014 WL 1810155 [2014] ), we conclude that Supreme Court erred in crediting the husb......
  • Susko v. Susko
    • United States
    • New York Supreme Court Appellate Division
    • March 5, 2020
    ...into account the needs of the custodial parent to maintain a household and provide certain necessaries" ( Matter of Apjohn v. Lubinski, 114 A.D.3d 1061, 1064, 981 N.Y.S.2d 166 [2014] [internal quotation marks, brackets and citation omitted], lv denied 23 N.Y.3d 902, 2014 WL 1810155 [2014] ;......
  • Dillon v. Dillon
    • United States
    • New York Supreme Court Appellate Division
    • November 16, 2017
    ...477 N.E.2d 1099 [1985] ; see Laba v. Carey, 29 N.Y.2d 302, 308, 327 N.Y.S.2d 613, 277 N.E.2d 641 [1971] ; Matter of Apjohn v. Lubinski, 114 A.D.3d 1061, 1064, 981 N.Y.S.2d 166 [2014], lv. denied 23 N.Y.3d 902, 2014 WL 1810155 [2014] ). Here, the parties agreed to "share in the costs of the ......
  • Diane C. v. Known
    • United States
    • New York Supreme Court Appellate Division
    • July 10, 2014
    ...( see [990 N.Y.S.2d 133]Matter of Josephine BB. [Rosetta BB.], 114 A.D.3d at 1097, 981 N.Y.S.2d 212;Matter of Daniel X. [Monica X.], 114 A.D.3d at 1061, 981 N.Y.S.2d 181). In our view, there is a sound and substantial basis in the record before us to support Family Court's determination tha......
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