S.B. v. J.R.

• Decision Date: 19 November 2013
• Citation: 2013 N.Y. Slip Op. 23401,43 Misc.3d 171,977 N.Y.S.2d 591
• Parties: S.B., Plaintiff, v. J.R. f/k/a J.B., Defendant.
• Court: New York Supreme Court

43 Misc.3d 171

977 N.Y.S.2d 591

2013 N.Y. Slip Op. 23401

S.B., Plaintiff,

v.J.R. f/k/a J.B., Defendant.

Supreme Court, Monroe County, New York.

Nov. 19, 2013.

Gregory Mott, Esq., Davidson Fink LLP, Rochester, Attorney for Plaintiff.

Joan de R. O'Byrne, Esq., Rochester, Attorney for Defendant.

RICHARD A. DOLLINGER, J.

In this matter, a couple, who punted the issue of financing their child's college to a “day in the future” in their separation stipulation, have now arrived at “the day of reckoning” and, because they can not now agree on even “the time of day,” the Court must decide how to allocate the costs of their son's college education.

The stipulation provided that the parents would “each pay and contribute to the best of their then ability.” They also agreed that “the parents maximum contribution for both of them shall be the published cost of SUNY education cost for each college year.” They agreed that the term “cost” would include “transportation, tuition, students fees, room and board, books and supplies, personal and transportation, sharing the costs of pre-college examinations and applications.” The parents obligation would be “net of any financial aid of any kind or nature that the children may receive.” They agreed that the financial aid package would include “grants” or “whatever financial aid each child may receive.” If they could not work out the contributions, it was agreed that they could ask this court to do so.

The complication arose in this case because of an unusual benefit obtained by the husband's second wife. The second wife works for an academic institution. As part of her benefits, she elected to have her husband's son, who resided with his father, covered by a benefit plan that included a tuition-free college education. When the couple attempted to calculate their contributions under the stipulation, the husband argued that the tuition-free benefit, derived solely because of his then wife's employment, should be credited as his contribution to the child's college education. Because the cost savings from the tuition benefit exceeded the husband's otherwise calculated share under what is commonly known as the “SUNY cap,” the husband argued that the remaining costs—room and board, books and fees—were not his obligation to pay; if his former wife paid these expenses, she did so without a right of contribution from him. The couple failed to work out this conundrum, and now ask this court to decide how to allocate the costs under their stipulation.

Before resolving the legal issues, the question of the husband's child support needs resolution. The parties' second son has lived with his father since August 2011, even though the husband has been paying child support for him. The wife concedes that the husband/father should not be paying support for this child. The husband's application to terminate support for this child is granted, effective on the date of the filing of this motion. Any overpayments made since the date of the filing may be credited against any liabilities set forth as a result of this decision. In addition, the support should be recalculated, with the mother having primary residence of two children and the husband having primary residence of one. These calculations and the offsets should be forwarded to the court within five days of this decision.

In considering the broader question of the parents liability for college expenses, the first step is easily advanced: this court is bound by the couple's stipulation. Under standard contract interpretation rubric, if the stipulation is unambiguous on its face, it must be enforce according to its terms. Matter of Korosh v. Korosh, 99 A.D.3d 909, 953 N.Y.S.2d 72 (2nd Dept.2012) (marital settlement is a contract subject to principles of contract interpretation and the court should interpret the contract in accordance with its plain and ordinary meaning); Ackermann v. Ackermann, 82 A.D.3d 1020, 919 N.Y.S.2d 209 (2nd Dept.2011) (where an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence). Rosenberger v. Rosenberger, 63 A.D.3d 898, 882 N.Y.S.2d 426 (2nd Dept.2008). In applying this principle, several terms are significant. The first is that the couple agreed to contribute to the “best of their then ability.” This court has previously reviewed similar common language terms to determine parents' contributions to college education. L.L. v. R.L., 36 Misc.3d 777, 949 N.Y.S.2d 863 (Sup.Ct. Monroe Cty.2012) (discussing what “respective means” means when considering the parental obligation to finance college education). Importantly, in this case, the couple did not choose the word “income” in their stipulation, a word that would suggest the ability to pay would be based solely on the individual parent's income, such as might be revealed in a parent's separately filed income tax return. The use of the phrase “ability” implies that other assets—available bank accounts, available home equity lines of credit, retirement accounts with available loans, parental resources or income from other family members (including a new spouse), could be considered by the court before determining a parent's “then ability to pay.” The word “ability” also implies that the parent's ability to pay college education costs could be based on some combination of their entire household income and thus, the court should consider the demands of their entire household, the lifestyle of the household and other factors, including the obligation to support other children. Finally, the parents, in the stipulation clearly intended that their children apply for any “financial aid package” and agreed that it would include “non-subsidized or subsidized loans, grants etcetera; whatever financial aid the child might receive.” This broad language evinces a parental decision to apply all types of financial aid against the college costs before the parents determine “their respective contributions to the net college cost.”

Before exploring what the parents might have to pay, this court must determine, under the unique circumstances of this case, whether either parent has any obligation to pay any costs after application of the tuition benefit. The husband, in reading the stipulation, argues that the tuition free benefit, valued at approximately $40,000, has the practical effect of meeting both parents obligation to finance college education and removes from either parent any obligation to contribute further. Under this argument, the value of the tuition benefit exceeds the “SUNY cap,” and hence, extinguishes any further parental support obligation. In the alternative, he argues that the tuition benefit, derived solely from his second wife's employment, should be credited solely against his financial contribution and therefore, while there may be additional out-of-pocket expenses, these should be paid by his former wife up to the amount of her share of the SUNY-cap.

However, these arguments are inconsistent with the terms of the stipulation and New York public policy. First, the husband describes the tuition benefit as “neither fish nor fowl,” ¹ suggesting that this benefit is neither a loan nor a grant as those terms are used in the stipulation. In reaching this conclusion, the husband fails to read that portion of the stipulation which states that the parents obligation is “net of any financial aid of any kind or nature that the children may receive.” The stipulation lists a series of expected “financial aid” sources—“non-subsidized or subsidized loans, grants, etcetera,” but then adds the catch-all phrase “whatever financial aid the child may receive.” The parents clearly intended to garner every possible source of assistance in paying for college. The stipulation, for example, required the mother to file a financial aid form.² Examined in this light, the tuition-free benefit derived through the husband's second wife, is unmistakably a form of “financial aid”—an “aid” to cover the financial cost of the tuition. The stipulation states that the parental obligation is “net” of any financial aid “that the children may receive.” In this case, the child “receives the aid.” There is no evidence that the academic institution pays any sums to either parent or to the husband's current wife. There is no evidence that the benefit is “received” by the second spouse. It may be “received by the child” because of the second spouse, but the actual benefit goes directly to the child and reduces the child's tuition and costs.

Second, the stipulation clearly envisions that this “financial aid” will be subtracted from the total cost before the parental contributions are defined. The two words “net of” are the accounting equivalent of the word “ minus” or “subtracted from.” See United States v. Genova, 333 F.3d 750, 761 (7th Cir.2003); Goldstein v. AccuScan, Inc., 2 N.Y.3d 811, 782 N.Y.S.2d 50, 815 N.E.2d 657 (2004) (“net of” means “minus” or the amount left after some sum has been subtracted from the other). Thus, to determine how the SUNY-cap applies, the stipulation, read in its entirety, suggests that entire college cost is compiled, any “financial aid” from any source other than the parents' pockets is deducted from that total, and then the parents contribute their respective shares up to the total of a SUNY-cap.

Third, the language of the stipulation is obvious testament to the fact that the parents wanted to cap their annual out-of-pocket investment in the children's education at an amount no greater than the SUNY-cap. The language is clear evidence that both parents knew, generally, what “the cap” entailed, and they agreed to pay annually up to that cap, even if the child received no financial aid. Therefore, if the “financial aid” by the child reduces the college expenses to a total less than the amount otherwise to be paid under a SUNY-cap, then neither parent can...