Susko v. Susko

• Citation: 118 N.Y.S.3d 810,181 A.D.3d 1016
• Decision Date: 05 March 2020
• Docket Number: 527939
• Parties: In the Matter of Jennifer E. SUSKO, Appellant, v. Brian J. SUSKO, Respondent. (And Another Related Proceeding.)
• Court: New York Supreme Court Appellate Division

181 A.D.3d 1016

118 N.Y.S.3d 810

In the Matter of Jennifer E. SUSKO, Appellant,

v.Brian J. SUSKO, Respondent. (And Another Related Proceeding.)

527939

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 10, 2020

Decided and Entered: March 5, 2020

Young/Sommer LLC, Albany (Lauren L. Hunt of counsel), for appellant.

Carola, Bagnoli & Tollisen, PLLC, Mechanicville (Gerald A. Thompson Jr. of counsel), for respondent.

Before: Garry, P.J., Mulvey, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from an order of the Family Court of Saratoga County (Jensen, J.), entered October 11, 2018, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 4, to modify a prior support obligation.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) were married in 1997 and are the parents of three children (born in 1999, 2002 and 2007). The mother commenced an action for divorce in 2015, and the parties entered into a settlement agreement that was incorporated, but not merged, into their judgment of divorce. The agreement included an opting-out child support provision setting the father's obligation at $400 weekly, and a provision by which the parties agreed that they would each contribute to the costs of each child's college education to the extent of their financial ability upon their consent to the chosen college, which consent was not to be unreasonably withheld.

In July 2017, the mother commenced enforcement proceedings alleging that the parties' oldest child (hereinafter the child) was about to begin her freshman year of college and that the father had violated the agreement by making only a minimal financial contribution and by refusing to state whether he consented to the chosen college. The mother also filed a modification petition seeking to recalculate the basic child support obligation and allocation of expenses. The father opposed both petitions.

Following a hearing, the Support Magistrate dismissed the modification petition on the ground that the mother had not demonstrated a change in circumstances. As for the enforcement petition, the Support Magistrate found that the father had given implied consent to the child's attendance at the chosen college,¹ that he had violated the agreement by failing to contribute to the child's college costs, and that the violation was not willful. The Support Magistrate declined the mother's request to impute income to the father, determined the amounts of both parties' incomes from their full-time employment, and ordered the father to pay 41% of the child's college expenses and the mother to pay 59%. The Support Magistrate granted the father a credit against his child support obligation in the amount of one third of his total $400 weekly obligation for 40 weeks of the year and thus directed him to pay $9,449.06 to the mother as his share of the total amount of $42,558.20 that she had paid by the time of trial for the cost of the child's first three semesters. The mother filed objections to the Support Magistrate's determinations, which Family Court denied. The mother appeals.

We turn first to Family Court's determination that the Support Magistrate properly found that the father's violation was not willful. "A separation agreement that is incorporated into, but does not merge with, a subsequent judgment of divorce is a legally binding, independent contract between the parties and is interpreted so as to give effect to the parties' intent" ( Bell v. Bell, 151 A.D.3d 1529, 1529, 54 N.Y.S.3d 776 [2017] [citations omitted]; see Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258 [1988] ; Matter of Dillon v. Dillon , 155 A.D.3d 1271, 1272, 64 N.Y.S.3d 755 [2017] ). Here, the agreement "unequivocally demonstrates that the parties intended to encourage and facilitate the child's pursuit of a college degree and to make some financial contribution ... toward that pursuit" upon their consent to a given school ( Matter of Dillon v. Dillon, 155 A.D.3d at 1273, 64 N.Y.S.3d 755 ).

The mother testified that she kept the father informed of the colleges that the child was considering, told him promptly that the child had been accepted at the chosen college and then provided him with full information about that school's cost and the child's financial aid award. She repeatedly asked the father whether he consented to this college and how much he would contribute, but he gave only evasive responses.² She testified that the father never voiced any express objection to the chosen college; on the contrary, he participated in completing financial aid documentation for that school, responded, "[T]hat is great" when he was informed by email of the child's acceptance and paid $450 as half of the initial deposit without objection. Thereafter, however, he paid nothing more. The father testified that he did not consent to the chosen college because he could not afford it, but he acknowledged that he had never expressly stated that he did not consent to that school.

The record thus fully supports the finding that the father gave implied consent to the chosen college and, therefore, that he violated the agreement by failing to make a contribution to its cost commensurate with his ability to pay (see Matter of Heinlein v. Kuzemka, 49 A.D.3d 996, 997–998, 854 N.Y.S.2d 560 [2008] ; Matter of Hartle v. Cobane, 228 A.D.2d 756, 757, 643 N.Y.S.2d 726 [1996] ; Matter of Harp v. McCann, 97 A.D.2d 868, 869, 469 N.Y.S.2d 266 [1983] ). We find no support in the law or the record for the determination that this violation was not willful (see Matter of Shkaf v. Shkaf, 162 A.D.3d 1152, 1154, 78 N.Y.S.3d 462 [2018] ).

Family Court found support for the determination that the violation was not willful based upon the parties' disagreements about the father's consent and the amount of his contributions. First, we note that this determination was inconsistent with the finding that the father did consent to the chosen college. Further, it is well established that the determination of willfulness in this context is based solely upon "proof of both the ability to pay support and the failure to do so" ( Matter of Powers v. Powers , 86 N.Y.2d 63, 68, 629 N.Y.S.2d 984, 653 N.E.2d 1154 [1995] ; accord Matter of Nickerson v. Bellinger, 258 A.D.2d 688, 688, 685 N.Y.S.2d 320 [1999] ). It has been repeatedly stated that, upon a prima facie showing of a willful violation of a support obligation, the burden shifts " ‘to the parent who owes the support to come forward with competent, credible evidence of his or her inability to pay,’ " and failure to satisfy this burden requires a determination that the violation is willful ( Matter of Shkaf v. Shkaf, 162 A.D.3d at 1153, 78 N.Y.S.3d 462, quoting Matter of Dench–Layton v. Dench–Layton, 151 A.D.3d 1199, 1201, 56 N.Y.S.3d 598 [2017] ; see Matter of Powers v. Powers, 86 N.Y.2d at 69–70, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Matter of Duprey v. Klaers, 167 A.D.3d 1288, 1289, 91 N.Y.S.3d 280 [2018] ; Matter of Sayyeau v. Nourse, 165 A.D.3d 1417, 1418, 86 N.Y.S.3d 259 [2018] ; Matter of Leder v. Leder, 140 A.D.3d 1228, 1229, 33 N.Y.S.3d 502 [2016] ).

Here, willfulness was established on a prima facie basis by the mother's showing and the father's admission that he had failed to make anything more than a minimal contribution to the child's college costs. The father made no showing that he was financially unable to contribute; indeed, he testified that he had told the mother that he would pay up to $5,500 for the child's college costs. The Support Magistrate's finding that the father had the financial ability to contribute to the child's college education thus clearly required a finding that his failure to do so was willful (see Matter of Vincek–Breakell v. Czizik, 155 A.D.3d 1384, 1385, 63 N.Y.S.3d 767 [2017] ; Matter of Grucci v. Villanti, 108 A.D.3d 626, 627, 969 N.Y.S.2d 493 [2013] ; Matter of Walsh v. Karamitis, 291 A.D.2d 749, 750, 738 N.Y.S.2d 143 [2002] ; see also Matter of Dillon v. Dillon, 155 A.D.3d at 1273, 64 N.Y.S.3d 755 ). We therefore find that the matter must be remitted to Family Court for a determination of the amount of the mother's mandatory award of counsel fees, not to be made by the same Support Magistrate who made the support determination at issue herein (see Family Ct. Act §§ 438[b] ; 454[3]; Matter of Shkaf v. Shkaf, 162 A.D.3d at 1156, 78 N.Y.S.3d 462 ; Matter of Warner v. Monroe, 262 A.D.2d 684, 686, 690 N.Y.S.2d 774 [1999] ).

The mother next contends that Family Court erred in several respects in upholding the Support Magistrate's calculation of the father's income. We disagree with the mother's contention that the Support Magistrate should have taken the parties' financial assets into account for this purpose. Where, as here, "the parties expressly undertook an obligation to contribute toward the cost of the child's college education, but did not precisely define the extent of their obligations, Family Court should ... proceed[ ] to consider the parties' financial means and ability to contribute and determine[ ] their respective obligations by assessing their pro rata shares of their combined parental income," as the Support Magistrate did here ( Matter of Dillon v. Dillon, 155 A.D.3d at 1273–1274, 64 N.Y.S.3d 755 ; see Matter of Cohen v. Rosen, 207 A.D.2d 155, 158, 621 N.Y.S.2d 411 [1995], lv denied 86 N.Y.2d 702, 631 N.Y.S.2d 606, 655 N.E.2d 703 [1995] ; see also Matter of Wheeler v. Wheeler, 174 A.D.3d 1507, 1509, 108 N.Y.S.3d 251 [2019] ; Pistilli v. Pistilli, 53 A.D.3d 1138, 1138–1139, 861 N.Y.S.2d 915 [2008] ).³

However, we agree with the mother that Family Court erred in denying her objection to the Support Magistrate's calculation of the father's income based upon his 2017 tax return, without imputing additional income to him. In this regard, the mother contends that the father earned substantial amounts...