MATTER OF FROWEIN v. Murray
| Decision Date | 17 October 2002 |
| Citation | 298 A.D.2d 647,748 N.Y.S.2d 796 |
| Parties | In the Matter of MARION FROWEIN, Respondent,<BR>v.<BR>MARK J. MURRAY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Petitioner and respondent were married in 1978 and divorced in 1989. The divorce judgment incorporated but did not merge a separation agreement executed by the parties in 1989 which, among other things, provided that respondent was to pay support for the parties' two children and that both parties agreed to "assist, reasonably, in the further costs of the children's higher educations, based upon the respective financial circumstances of the parties." In October 2000, petitioner commenced this proceeding seeking to enforce the terms of the divorce judgment by compelling respondent to pay the full amount of child support due under the incorporated separation agreement, including all accrued arrears, and to contribute to the college expenses for their daughter.
Following a hearing, the Hearing Examiner established respondent's child support arrears at $42,198, rejected respondent's defense that petitioner waived her right to those arrears and, applying the statutory formula of the Child Support Standards Act to the parties' first $80,000 of combined parental income (see Family Ct Act § 413 [1] [b], [c]), established respondent's biweekly support obligation. The Hearing Examiner also found that respondent had the financial ability to contribute to his daughter's college expenses and ordered him to pay 50% of the child's reasonable college education expenses until she was emancipated. Family Court denied respondent's timely written objections to the Hearing Examiner's decision. Respondent now appeals.
Initially, respondent contends that both the Hearing Examiner and Family Court erred in rejecting his defense that petitioner waived her claim for unpaid child support based on the language of the parties' separation agreement and the history of his child support payments. We disagree. Respondent's claim that in June or July 1994 the parties orally agreed[*] that respondent's monthly child support would thereafter be $850 was contradicted by petitioner, who testified that she made no such agreement and that she continued to demand that respondent pay the support called for under the terms of the incorporated separation agreement. The Hearing Examiner credited petitioner's testimony on this issue, finding that petitioner did not agree to a prospective waiver of child support (cf. Matter of O'Connor v Curcio, 281 AD2d 100) and, on this record, we must defer to her credibility determination (see Matter of Liccione v John H., 65 NY2d 826, 827; Matter of Feliciano v Nielsen, 282 AD2d 783, 785; Matter of Franklin v Franklin...
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...that "the parties intended to equally share the cost of college" was reasonable (see generally Matter of Frowein v. Murray, 298 A.D.2d 647, 648, 748 N.Y.S.2d 796 [2002] ). More importantly, this interpretation, which Family Court fashioned after a hearing, is reflective of "the parties' int......
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