Messinger v. Messinger

• Decision Date: 24 April 2019
• Docket Number: 10/11807
• Parties: Richard A. MESSINGER, Plaintiff, v. Cindy A. MESSINGER, Defendant.
• Court: New York Supreme Court

66 Misc.3d 1222 (A)
121 N.Y.S.3d 778 (Table)

Richard A. MESSINGER, Plaintiff,
v.
Cindy A. MESSINGER, Defendant.

10/11807

Supreme Court, Monroe County, New York.

Decided April 24, 2019

Michael Schmitt, Esq., Attorney for Plaintiff, New York, New York

Donald White, Esq., Attorney for Defendant, Rochester, New York

Richard A. Dollinger, J.

In this matter, the court is - once again - dragged into a controversy over financing college education costs.¹ In this instance, the parties agreed to finance their oldest son's college education, but made no allowance for their younger daughter and her mother now seeks a contribution from the child's father for the daughter's college costs.

In 2014, the parties signed an opting out agreement to resolve their matrimonial dispute. In 2016, their divorce decree was signed, incorporating the agreement. The agreement made provisions for financing the older son's college costs and allocated those costs between the then-working parents. The agreement never mentioned the younger daughter and the financing of her college costs. When the daughter graduated from high school in the spring of 2018, she enrolled in a two-year veterinary program. The mother currently works two jobs and earned in 2017 a total of $34,834, a number that included $1,000 per month in spousal maintenance. In addition, the wife also received $1,683 each month in 2018 as her marital share of her former spouse's New York State pension. The father retired in 2017, works part-time and claims he earned slightly less than $40,000 annually. In his last-full year before retiring, the father earned $115,825.

The crux of this matter rests with whether the father has any obligation to help finance the daughter's education. There is no contractual obligation: the agreement is silent on the daughter's college expenses and neither parent is obligated, under the agreement, to pay for any such expenses. The absence of an contractual obligation to finance college costs is not determinative. The Domestic Relations Law provides:

Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.

NY DRL § 240 (1-b) (c) (7) ; see also Family Court Act § 413 (c) (7). The New York courts have given that legislative command a wide berth, holding that a court may properly direct a parent to contribute to a child's private college education, even in the absence of special circumstances or a voluntary agreement of the parties, so long as the court's discretion is not improvidently exercised in that regard.² Matter of Paccione v. Paccione , 57 AD3d 900 (2d Dept 2008) ; Manno v. Manno , 196 AD2d 488 (2d Dept 1993). In determining whether to award educational expenses, this court does not have unfettered discretion in making such an award and must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the child, and the requirements of justice. Matter of Pittman v. Williams , 127 AD3d 755 (2d Dept 2015). The New York courts have set forth factors to be considered in such a determination, including the educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child. S.B. v. J.R. , 43 Misc 3d 171 (Sup. Ct. Monroe Cty 2013). In that later case, this court borrowed a series of principles from the highest court in New Jersey and listed a series of factors, including:

(1) the ability of the parent to pay the cost from their annual income;

(2) the relationship of the requested contribution to the kind of school or course of study sought by the child;

(3) the financial resources or assets of both parents or their access to other assets or income from other members of the household or grandparents and the lifestyle of their current household;

(4) the commitment to and aptitude of the child for the requested education;

(5) the financial resources of the child, including assets owned individually or held in custodianship or trust;

(6) the ability of the child to earn income during the school year or on vacation;

(7) the availability of additional financial aid in the form of college grants and loans;

(8) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and,

(9) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

Newburgh v. Arrigo , 88 NJ 529, 545, 443 A2d 1031, 1038-1039 (1982). Other New York courts have considered whether the obligation to pay college costs impacts a parent's ability to maintain a separate household. Matter of Ocasio v. Smith , 70 AD3d 952 (2d Dept...