Lord v. Lord

• Court: New York Supreme Court
• Writing for the Court: BENTLEY KASSAL
• Citation: Lord v. Lord, 96 Misc.2d 434, 409 N.Y.S.2d 46 (N.Y. Sup. Ct. 1978)
• Decision Date: 06 February 1978
• Parties: Marjorie LORD, * Plaintiff, v. Robert LORD,* Defendant.

Page 46

409 N.Y.S.2d 46

96 Misc.2d 434

Marjorie LORD, ^* Plaintiff, v. Robert LORD,* Defendant.

Supreme Court, Special Term, New York County, Part 5B.

Feb. 6, 1978.

Poletti, Freidin, Prashker, Feldman & Gartner, New York City (Justin N. Feldman and Joan C. Koven, New York City, of counsel), for plaintiff.

Parker, Duryee, Zunino, Malone & Carter, New York City (Peter C. Langenus, New York City, of counsel), for defendant.

BENTLEY KASSAL, Justice:

After trial of this action for divorce, the issues remaining to be resolved are the support for the three children, who are 16, 21 and 22 years of age, and the plaintiff's application for a division of two life insurance policies on the husband's life of which she claims to be the equitable owner.

I. SUPPORT FOR CHILDREN

A. Ability of Husband to Provide Support

There are three children of this marriage: Tracy, 23 years old; John, 21 years old and Kristina, 16 years old.

It is not disputed that during the 20 years that the parties lived together, they maintained an extremely luxurious lifestyle and they raised their children accordingly, including, Inter alia, educating them at the finest, high-tuition private schools, taking them on expensive vacations and ski trips and encouraging and funding expensive hobbies and other extracurricular activities, including ballet and photography lessons and horseback riding, as an illustration. When asked about the fact that he had purchased a horse for his daughter and stabled it at a cost of $2640 a year, the father stated matter-of-factly that he bought the horse because she wanted it, she was a wealthy young girl, and it was part of her lifestyle.

The husband was "precluded from opposing plaintiff's claim that he can afford to pay $200 per week for child support" by a prior court order. Nevertheless, considering his annual income of at least $50,000-$62,000 for the last few years (and that he has been expending moneys for others for whom he has no legal obligation), it is clear that he would be capable of providing support in excess of this sum, but this is not in issue since the wife seeks only $200 a week as his total contribution to the support of the children, agreeing to provide the remainder herself. This is not an insignificant concession on her part since her uncontroverted proof was that the cost of maintaining her youngest child, alone, is about $25,000 a year, including the child's share of a very large and expensive co-operative apartment on Sutton Place, and her affidavit, in compliance with Section 660.22 of the Rules of the Supreme Court, New York and Bronx Counties, dated December 26, 1975, without contest, claims weekly expenses for the three children to be $1320 (which is credible in these circumstances).

B. Relative Obligation of Support of Each Parent

The traditional and statutory notion (DRL § 32) that a father has the primary obligation to support his children neither reflects the realities of modern life nor complies with our constitutional requirements of equal protection. Nor is such a construction consistent with the statutory dictates of DRL § 240 which requires that support be determined "having regard (for) the circumstances . . . of the respective parties" and "out of the property of Either or both of its parents." (emphasis added).

There have been recent judicial constructions of Sections 413 and 414 of the Family Court Act which require apportionment of the costs of child support between both parents, according to their respective means and responsibilities (Carter v. Carter, 58 A.D.2d 438, 397 N.Y.S.2d 88 (2d Dept., 1977); Tessler v. Siegel, 59 A.D.2d 846, 399 N.Y.S.2d 218 (1st Dept., 1977)). These rulings are so closely analogous to this case that they must be considered as controlling with respect to DRL § 32. Accordingly, there is no necessity for the notice to the Attorney-General normally required by Section 71 of the Executive Law.

Having due regard for the circumstances of this case and of the respective parties, justice requires that each parent have equal financial responsibility for providing the necessary support for their children. While the mother has agreed to limit the father's total obligation even further (her agreement to pay all support in excess of $200 per week), it is, nevertheless, necessary to determine his obligations to support each child individually since, by reason of age and other factors which will be discussed, the period and amount of support will differ for each child.

C. Kristina 16 years of age

The mother has testified to a schedule of direct expenses for Kristina, in the amount of $12,600 including $4,500 for private high-school tuition, and indirect expenses in a similar amount. In substance, the father raised no questions with regard to the actual amount spent on his children, stating that they had been spoiled by both parents.

(i) Obligation to Provide Private School Education

While ordinarily, a father has no duty to provide a private high-school education for his children, the Court is not without authority to direct such a contribution. Kotkin v. Kerner, 29 A.D.2d 367, 288 N.Y.S.2d 244, DRL § 240.

The circumstances of this case and of the parties and the best interests of the child, including, Inter alia, the following factors, make such a direction appropriate here:

1. Both parents can afford such an expense. cf. Matthews v. Matthews, 14 A.D.2d 546, 217 N.Y.S.2d 736; K. v. K., 83 Misc.2d 911, 919, 373 N.Y.S.2d 486, 494 and the cases cited thereat.

2. Both of the other children attended similar private schools.

3. The child was enrolled in the school while her father was still a member of the household, did consent thereto and, in fact, he paid the tuition until he left.

4. The Dalton School, which the child attends, has a general reputation for providing an excellent education.

5. The child has already attended the school for many years and to take her out now would be very disruptive to her education.

6. The child developed friendships with her classmates.

7. This is the standard of living to which the children are accustomed. cf. K. v. K., supra.

On the basis of all of the evidence presented having regard to the circumstances of the case and of the respective parties and the best interests of the child, justice requires a finding that the reasonable sum for the support of this child is $17,500 of which the father shall be responsible for one-half thereof, $8750.

D. John 21 years of age

The initial question with respect to the mother's application for support for John is the father's contention that his obligation has terminated by reason of the fact that the son, now 21 years old, has attained his majority.

(i) Duty to Support Children Beyond Age Twenty-One

The law of this state is clear that Absent exceptional circumstances, the father's obligation to support a child terminates when the child becomes twenty-one. Seaman v. Seaman, 37 A.D.2d 551, 552, 322 N.Y.S.2d 577, 578; People ex rel. Gardner v. Gardner, 39 A.D.2d 735, 332 N.Y.S.2d 136, affd. 32 N.Y.2d 884, 346 N.Y.S.2d 812, 300 N.E.2d 153; Mario v. Mario, 51 A.D.2d 428, 431, 381 N.Y.S.2d 1013, 1015; Lynch v. Lynch, 47 A.D.2d 928, 367 N.Y.S.2d 66; Greenberg v. Greenberg, 27 A.D.2d 952, 279 N.Y.S.2d 363; Sloan v. Sloan, 286 App.Div. 1102, 145 N.Y.S.2d 797; Lair v. Lair, 276 App.Div. 775, 92 N.Y.S.2d 677. It is equally clear that the fact that the child is attending college Is not, in itself, such an exceptional circumstance to justify a support order beyond age twenty-one. Seaman v. Seaman, supra; Greenberg v. Greenberg, supra; Sloan v. Sloan, supra, Halsted v. Halsted, 228 App.Div. 298, 239 N.Y.S. 422.

While I have found no reported decisions clearly spelling out what constitutes the Exceptional circumstances for support beyond the age of twenty-one, in my judgment, the proof adduced in this case, including, Inter alia, the following factors should cross the threshold:

1. Both parents are college graduates. In fact, the father has received extensive postgraduate professional education. cf. Kaplan v. Wallshein, 57 A.D.2d 828, 394 N.Y.S.2d 439.

2. Both parents can clearly afford to support the children through college, including sending them to private universities. cf. Matthews v. Matthews, supra; K. v. K., supra; Kaplan v. Wallshein, supra.

3. The two oldest children are attending college, having enrolled while the father was still a member of the household.

4. The children have sufficient academic ability to go to college. cf. Kaplan v. Wallshein, supra.

5. The children have attended private college preparatory high schools.

6. The children have been raised in an economic environment where it would be unreasonable for them to expect that their parents would not see to their financial needs at least through college. cf. K. v. K., supra.

7. The children have been raised among other children and socialized in a setting where it would be unusual for them not to go to college.

8. The children have never been denied anything, no matter how extravagant, as long as their parents have had ample resources. cf. K. v. K., supra.

9. In their cultural, social and economic background, a college degree is a prerequisite for suitable employment in the competition for present day living. cf. K. v. K., supra.

Clearly it would be easier to come to a conclusion based upon traditional rules of support if the wife and children were destitute and in danger of becoming wards of the state. That is certainly not the case here. In fact, I am certain, and I find, that the wife alone has more than sufficient means and desire to provide all of the support these children will need. But, none of these facts absolves the father of his duty to provide appropriate support for his children and to fairly share this obligation with his former wife pursuant to DRL § 240.

Should the youngest child, Kristina, choose to attend college, this same reasoning should apply, assuming the situation has...