Espy v. Espy

• Decision Date: 23 February 2017
• Parties: Amanda ESPY, Plaintiff–Respondent, v. Peter ESPY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 666
46 N.Y.S.3d 890 (Mem)
2017 N.Y. Slip Op. 01478

Amanda ESPY, Plaintiff–Respondent,
v.
Peter ESPY, Defendant–Appellant.

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

Feb. 23, 2017.

Orenstein & Orenstein, LLC, New York (Keith S. Orenstein of counsel), for appellant.

Newman & Denney P.C., New York (Briana Denney of counsel), for respondent.

Order, Supreme Court, New York County (Laura E. Drager, J.), entered June 22, 2016, which, in this postjudgment matrimonial proceeding, to the extent appealed from as limited by the briefs, granted plaintiff's motion for an order directing defendant to pay 80% of the private school expenses of the parties' child, unanimously affirmed, without costs.

Supreme Court properly determined that defendant was responsible for 80% of the private school educational expenses of the parties' child. "The terms of a separation agreement incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties" (Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5, 743 N.Y.S.2d 773, 770 N.E.2d 561 [2002] ). Contrary to defendant's contention, his refusal to give his explicit consent to the child attending a certain private school did not absolve him of his contractual obligations. Pursuant to the parties' custody and settlement agreements, in the event of a dispute regarding a "major matter," including the child's education, the dispute resolution process included seeking judicial intervention. Here, under the circumstances presented, we agree with Supreme Court that defendant's

46 N.Y.S.3d 891

actions, which included a failure to seek such judicial intervention, amounted to acquiescence to the child's enrollment in the private school (see Matter of Parker v. Parker, 74 A.D.3d 1076, 903 N.Y.S.2d 145 [2d Dept.2010] ).

To the extent defendant claims he should be relieved of his contractual obligation to pay for the child's educational expenses because he cannot afford the private school, the argument is unavailing. The settlement agreement did not make consideration of...