Matter of Heinlein v. Kuzemka

• Decision Date: 13 March 2008
• Docket Number: 502752.
• Parties: In the Matter of SUSAN A. HEINLEIN, Respondent, v. JON K. KUZEMKA, Appellant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 996

854 N.Y.S.2d 560

2008 NY Slip Op 02064

In the Matter of SUSAN A. HEINLEIN, Respondent, v. JON K. KUZEMKA, Appellant.

502752.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided March 13, 2008.

Appeal from an order of the Family Court of Broome County (Pines, J.), entered August 30, 2006, which, among other things, partially granted petitioner's application, in two proceedings pursuant to Family Ct Act article 4, for modification of a prior child support order.

Peters, J.P.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) have two sons (born in 1985 and 1988). Pursuant to a separation agreement which was incorporated, but not merged, into their judgment of divorce, the parties agreed to contribute to the children's college expenses, provided that their then-financial circumstances permitted them to do so and that both parents "approve of the educational institution, course of study and living arrangements." In March 2001, an order of support was entered which modified the father's child support obligation and otherwise left the provisions of the separation agreement unchanged. In the fall of 2003, having accumulated $75,000 in scholarship funds, the elder son began attending Rensselaer Polytechnic Institute (hereinafter RPI). In March 2006, the mother commenced the instant proceedings seeking a modification of the prior order of support and alleging a violation of the support order. Specifically, she alleged an increase in expenses as a result of the children's college costs, as well as the father's failure to contribute to such expenses as agreed to in the separation agreement.

Following a hearing on the petitions, wherein a document setting forth the children's college expenses was admitted into evidence without objection, the Support Magistrate dismissed the mother's violation petition and modified the prior support order to the extent that support payments for the elder son would cease upon his attainment of the age of 21. Thereafter, the mother filed written objections to the Support Magistrate's orders, to which the father responded. Upon review, Family Court partially granted the mother's objections, ordering the father to reimburse the mother for 61%, or approximately $35,000, of the elder son's accumulated college expenses. The father appeals.

It is by now well settled that a separation agreement that is incorporated, but not merged, into a divorce degree is a legally binding independent contract between the parties which must be interpreted so as to give effect to the parties' intentions (see Mills v Mills, 22 AD3d 1003, 1003 [2005]; Matter of Antes v Miller, 304 AD2d 892, 893 [2003]). Here, the separation agreement clearly evinced the parties' intent to provide their children with a college education and to contribute to the associated costs. The father seeks relief from this obligation, asserting that since the mother did not consult him regarding his son's attendance at RPI, he did not approve of that school or any of the child's college-related expenses. His protests are unavailing since, while aware of the child's aspirations to attend RPI, he failed to make any inquiries of the mother and consistently declined to accept registered mail sent by her (see Matter of Harp v McCann, 97 AD2d 868, 869 [1983]). Moreover, once the father became aware that his son was attending RPI, he took no action to object to the choice of school or apply to be relieved of his obligations, thus "signif[ying] his...