Connolly v. Connolly

• Decision Date: 10 November 1981
• Parties: C. Stephen CONNOLLY, Plaintiff-Respondent, v. Janet A. CONNOLLY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 661

443 N.Y.S.2d 661

83 A.D.2d 136

C. Stephen CONNOLLY, Plaintiff-Respondent, v. Janet A. CONNOLLY, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Nov. 10, 1981.

Franklin S. Bonem, New York City, of counsel (Proskauer, Rose, Goetz & Mendelsohn, New York City, attorneys), for defendant-appellant.

Peter E. Bronstein, New York City, of counsel (Richard L. Wallace, New York City, with him on the brief; Bronstein, Van Veen & Bronstein, P. C., New York City, attorneys), for plaintiff-respondent.

Before MURPHY, P. J., and KUPFERMAN, SULLIVAN, CARRO and LUPIANO, JJ.

SULLIVAN, Justice.

Janet A. Connolly appeals from a denial of her motion for an order pursuant to Domestic Relations Law § 240 amending a divorce decree to direct her former husband, C. Stephen Connolly, to pay the college expenses of two of their children, or, alternatively, for the discovery of the husband's income and assets and an evidentiary hearing to determine his ability to pay.

The parties, married in 1956, sued each other in 1976 for divorce. On the eve of trial they terminated the litigation by oral stipulation of settlement dictated in open court pursuant to which a consent decree was entered on February 8, 1977, granting the wife a divorce and requiring her husband to pay $40,000 per year in support for her and their four children. The decree provided for a reduction of the husband's support obligation as each child became emancipated until, upon the emancipation of the youngest, he would pay $24,000 per year. The oldest child was emancipated in 1978, reducing the husband's support payments to their present level of $37,000 per year.

As reflected by her most recent income tax return, the wife's sole income comes from the support payments and $795 in dividends from General Motors stock which the husband, some years earlier, had pledged as collateral for a personal loan. She has no other sources of income. An itemized schedule shows annual expenses of $37,356 for the wife and children. The monthly rental on their east side Manhattan apartment alone is $1,150.

Both the husband, a physician, who attended medical school at Cornell University, and his wife received private secondary and college educations. All four children have attended private schools continuously from the age of three. The oldest, Cindy, now 23, is a graduate of Skidmore. Her college education was made possible through the generosity of the wife's father who, for the most part, underwrote the costs. The cost of the four children's private schooling was paid by the wife and her father, and in part, from a trust fund established by a former patient of the husband. The tuition withdrawals from the trust fund were with the husband's consent.

When the oldest son, Stephen, 19 years of age at the time of the wife's application, was in the twelfth grade at The Trinity School his father encouraged him to apply to a number of private colleges and arranged an interview for him at Holy Cross College. Ultimately he was accepted at the University of Rochester. The husband paid $5,500 towards Stephen's first-year college expenses in 1979-80 and Stephen took out a $2,500 loan to pay the balance. In his second year, however, after paying $2,500, the husband refused to make any further payments. Stephen took out another $2,500 loan and contributed $300 from his summer earnings, leaving a balance of $2,600 which is currently overdue.

The second oldest son, Daniel, 17 years of age at the time of the application, was an honor student at The Browning School from which he was about to graduate. The father has encouraged him to apply to private colleges, including Georgetown, Hamilton, Holy Cross, Bates and Rochester. Finances permitting, he had planned to attend Hamilton. The wife alleges that because of the husband's income neither boy is eligible for a scholarship.

The husband, self-employed and specializing in internal medicine, with offices at 311 East 79th Street in Manhattan, claimed an annual income of $62,000 at the time the matrimonial action was settled. His gross income was then over $150,000. He subsequently moved to a larger office at his present address. Although his 1980 or current income is not disclosed, he states that he had an income of $83,917 in 1979.

Against this background and stressing the current rampant double-digit inflation and her inability to pay any part of the children's college costs, the wife, on March 6, 1981, moved at Special Term to compel the husband to pay the college expenses of Stephen and Daniel. In denying the wife's application, Special Term found an absence of special circumstances which would warrant requiring the husband to furnish private college education to his children. We disagree.

At the outset, we reject the husband's contention that the wife waived her right to seek payment of college expenses from him. In support of his position, the husband relies upon the stipulation of settlement wherein the attorneys for the respective parties stated as follows:

Husband's attorney: Insofar as the parties agree that the children should thereafter attend college, they will endeavor to make such arrangements as they feel appropriate at such time to cover the costs of such education.

Wife's attorney: And neither nor the is bound in any way to be financially responsible for such education.

We do not read the stipulation as a waiver of the wife's right to seek payment of college expenses but, rather, as contemplating the need for relief at some future time. In any event, the stipulation of settlement expressly provided that the agreement "shall be merged in any judgment or decree of divorce to be entered herein and shall not survive as an agreement between the parties." Thus, even assuming, arguendo, that the husband's interpretation that the wife waived her rights is correct, the agreement lost all effect by its merger without survival into the judgment. (Jaeckel v. Jaeckel, 179 Misc. 994, 997, 40 N.Y.S.2d 491.) Consequently, we are not asked to disturb a negotiated settlement but, rather, to consider whether the support provisions of the judgment are adequate in light of the children's current needs.

The case of Wlodarek v. Wlodarek, 78 A.D.2d 981, 433 N.Y.S.2d 672, is directly on point, except that there the stipulation did not contain the merger clause present here. Yet, the court held that the alimony and support provisions of a judgment based, not upon a prior general separation agreement, but upon the oral stipulation of opposing counsel at the time of the divorce trial, without provision against merger, are not subject to the rule of Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791 that only an "unanticipated and unreasonable change in circumstances" justifies modification of agreed provisions for child support.

The provision of the judgment pertinent to the children's education reads as follows:

The children shall receive private school educations through the twelfth grade, without liability to for the expenses therefor. Insofar as shall agree that the children should attend college, shall endeavor to make such arrangements to cover the expenses of college education as they shall consider appropriate at that time. Neither is bound by this Judgment to pay the costs of college or post-graduate education for the children or any of them.

A fair interpretation of the stipulation and judgment, taken together, is that the stipulation did not bind either party to pay college expenses; that the stipulation would...