L.L. v. R.L.

• Citation: 2012 N.Y. Slip Op. 22170,36 Misc.3d 777,949 N.Y.S.2d 863
• Parties: L.L., Plaintiff, v. R.L., Defendant.
• Decision Date: 22 June 2012
• Court: United States State Supreme Court (New York)

36 Misc.3d 777
949 N.Y.S.2d 863
2012 N.Y. Slip Op. 22170

L.L., Plaintiff,
v.
R.L., Defendant.

Supreme Court, Monroe County, New York.

June 22, 2012.

[949 N.Y.S.2d 865]

Steven M. Witkowicz, Esq., Handelman, Witkowicz & Levitsky, Rochester, for Plaintiff.

Michael A. Rosenbloom, Esq., Rochester, for Defendant.

RICHARD A. DOLLINGER, J.
[36 Misc.3d 778]INTRODUCTION

What does “means” mean?

[36 Misc.3d 779]In this matter, the court confronts a common problem for a divorced couple. The parties made a provision for their children's undergraduate education in their separation agreement, requiring them to contribute according to “their respective means” if and when the children went to college. Now, as they begin to attend college—and the bills accrue—the parties dispute this detail of their separation agreement, specifically the definition of “means.”

Most of the facts are undisputed. In their separation agreement, the parents have joint custody of their three children. They agreed that decision making would be shared “on all matters having a significant impact on the children's live including ... education” and that they would finance the children's college education “according to their respective means at the time the child attends college, after grants and scholarships have been taken into consideration.” ¹ The agreement also states:

The parents shall consult, in advance, with each other and their children concerning college education, costs, and the choice of colleges for the children, and each shall be encouraged to participate in the planning of said education. The parties shall cooperate in completing and filing any and all financial aid applications for the children in whatever manner shall maximize the children's financial entitlement.

In 2011, the parties' oldest son applied, was accepted, and enrolled at Penn State University in Harrisburg, Pennsylvania. Prior to his departure, the wife moved, by order to show cause, for an allocation of the college expenses under the agreement

[949 N.Y.S.2d 866]

and other relief. This court granted a portion of the requested relief, but reserved on the question of the college expense allocation. Now, the couple's second son has applied for college and the wife now seeks an allocation of those expenses as well.

The husband, in his initial response to the college expense application, contends that his wife failed to consult him on the [36 Misc.3d 780]first son's college choice. He admits that he spoke directly with his son, but in a previously submitted affidavit, contends that his son told him that his mother “would take care of it.” The husband argues that he was never informed of the child's decision to enroll at Penn State until the wife sent him a bill for the tuition and other costs. He also argues that he is not a college graduate and does not have the means to pay what the wife requests for the child's college education.

In 2012, the middle child applied to college, was accepted at Hofstra University and St. John's University, and was awarded scholarships at both schools. The expenses, as estimated by the wife, total $33,000 per year for the middle child. After several conferences to discuss the allocation, the parties were unable to agree on their respective commitments to finance the cost. The wife renewed her motion, asking this court to apportion the college expenses for both sons. A hearing was held, and both parents testified.

The wife testified that she has remarried and had personal earnings of $44,672 in 2011. She receives $702 every two weeks in the form of child support for the couple's three children, who resided with her. She states, without contradiction, that the annual cost for education at Penn State was approximately $41,000 in 2011–2012, but the son received $18,000–$20,000 in “alternative loans.” She later clarified that the first son received approximately $30,000 in loans which were cosigned her mother (the maternal grandmother). The wife also testified that she filled out the Free Application for Federal Student Aid (“FAFSA”) for her son to enroll at Penn State. The wife admits that she did not pay a substantial amount for the oldest son's first year at college—only $600 out of her own pocket for a housing deposit and an application fee. There was no evidence that she paid any additional amounts. With respect to the second son, the wife testified that he wanted to attend St. John's University, that the university required a deposit of $700, and that she again filled out the FAFSA form. The wife added that she was unaware of any conversations between the husband and either son prior to their decisions to enroll at college. Importantly, the wife acknowledged that during this time she never considered the provisions of the separation agreement requiring her to discuss the college application process with her former husband.

During cross-examination, the wife admitted that she never discussed the FAFSA form for her older son with the husband and admitted, “we really don't speak.” When the husband's attorney[36 Misc.3d 781]asked whether the wife had participated in a conversation with her ex-husband regarding the older child's college choice, the wife could not recall a specific one, although she recalled a meeting where college was discussed. She could not specifically recall a conversation with the husband “over a specific dollar commitment” that the husband would make for the sons. She stated that the husband told her that he had informed his son “that he would not be able to do that [contribute to college].” The wife also testified that the husband never approached her about the children's college education plans, even after the son had

[949 N.Y.S.2d 867]

graduated from high school. During cross-examination, the wife was unwilling to commit to a specific college contribution for her sons. She testified that she would do “what I can do,” but declined to mention any specific dollar commitment. She acknowledged that she had only paid $600—total—to Penn State and that the remainder of the costs were paid through scholarships or loans. In regard to the upcoming school year, the wife testified that she was unsure how much aid her older son would receive for the 2012–2013 school year. There is no evidence that the wife ever discussed the agreed “SUNY-cap” with either of the college-bound children, or their father, prior to enrolling them in college. She did testify that while she had encouraged both children to apply to SUNY schools, neither was interested in applying.

The husband testified that he earned $56,000 in 2011. He said that he never discussed the oldest son's college choice with his wife. He admitted he knew that his older son was applying for colleges, but he learned of that fact from his son and never discussed it with his wife prior to the decision to attend Penn State. He did acknowledge, under cross-examination, that he knew his older son was applying at the University of Maryland because his wife asked him to watch their other two sons when she took the oldest to visit the campus. He testified that he did discuss the choice of Penn State with his son and that he encouraged him to establish residency in Pennsylvania to reduce the tuition. He acknowledged that he met his wife in the summer of 2011, before his older son went to college, and that they discussed college expenses, but that occurred after his son had been accepted. He states that his wife never asked him for a commitment to pay any portion of the older son's college expenses.

As part of the proof, the parties each introduced their own statements of net worth, their respective new spouses' statements[36 Misc.3d 782]of net worth, and financial aid forms and other materials related to the children's college expenses.

ANALYSIS OF THE LEGAL ISSUES UNDER THE AGREEMENT

Before analyzing this matter, the court wants to make clear its limited scope of inquiry and decision-making. This court is not deciding what the parents should contribute to their children's college education expenses. The agreement clearly indicates that both parents would contribute something if they had the means to do so. The only issues before the court are questions of contract interpretation, and contractual rights: what the parents agreed they would contribute, what obligation may be enforced against either parent under the agreement, and whether either party has, to date, breached their obligations thereunder.

1. The Parties' Obligations under the Agreement

Under New York law, parents can to define their college obligations to their children in a separation agreement. Cimons v. Cimons, 53 A.D.3d 125, 127, 861 N.Y.S.2d 88 (2nd Dept.2008) (support for a child's college education is not mandatory); Bennett v. McGorry, 34 A.D.3d 1290, 1291, 827 N.Y.S.2d 381 (4th Dept.2006) (agreement stated that future contributions toward college expenses for children would be determined based on each party's financial circumstances at the time and the court found that consideration of defendant's child support obligation affected his financial circumstances and was to be considered in determining how much he had to pay toward college costs);

[949 N.Y.S.2d 868]

Milark v. Meigher, 17 A.D.3d 844, 793 N.Y.S.2d 581 (3rd Dept.2005). In this case, the parties agreed that they would each pay for defined college expenses. The use of the word “respective” clearly connotes that each party would make separate contributions, depending on their means.

Neither party argues the use of the word “means” is ambiguous and the court agrees that it is not. Clark v. Clark, 33 A.D.3d 836, 837, 827 N.Y.S.2d 159 (2nd Dept.2006) (where an agreement is clear and unambiguous on its face, the parties' intent must be gleaned from the four corners of the agreement, and not from extrinsic evidence). Despite the lack of ambiguity, the court is amazed by the apparent absence of legal interpretations of the phrase “respective means.” New York's Family Court...