Tammone v. Tammone

• Decision Date: 24 April 2012
• Citation: 943 N.Y.S.2d 154,2012 N.Y. Slip Op. 03205,94 A.D.3d 1131
• Parties: In the Matter of Rocco TAMMONE, appellant, v. Anne Marie TAMMONE, respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03205

94 A.D.3d 1131

943 N.Y.S.2d 154

In the Matter of Rocco TAMMONE, appellant,

v.Anne Marie TAMMONE, respondent.

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

April 24, 2012.

Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh, N.Y. (William J. Larkin, III of counsel), for appellant.

Corbally, Gartland & Rappleyea, LLP, Poughkeepsie, N.Y. (William W. Frame of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Orange County (Bivona, J.), entered March 7, 2011, which granted the mother's objections to an order of the same court (Braxton, S.M.), dated October 26, 2010, which, after a hearing, granted that branch of the father's petition which was to require the mother to pay a share of the college expenses for the parties' older child, and thereupon vacated the order dated October 26, 2010.

ORDERED that the order entered March 7, 2011, is reversed, on the law and the facts, with costs, the mother's objections to the order dated October 26, 2010, are denied, and the order dated October 26, 2010, is reinstated.

The Family Court improperly granted the mother's objections to an order dated October 26, 2010, which granted that branch of the father's petition which was to require the mother to pay a share of the college expenses for the parties' older child pursuant to the parties' separation agreement.

Article VII section B of the parties' separation agreement provides in relevant part that the parties “shall be obligated to pay for each child's undergraduate education consisting of four years of undergraduate schooling in proportion to each party's income at the time each child attends college so long as the child pursues said education on a full time, continuous basis with the reasonable diligence calculated to obtain grades commensurate with the child's ability,” and that the children's colleges “shall be chosen with the consultation and consideration of their parents [sic] wishes and financial condition,” but that “[i]rrespective of the parties [sic] incomes at the time the children attend college, neither party shall pay more than 60% of the above college expenses” after the exhaustion of funds in certain bank accounts and the funds in the father's life insurance policy.

Here, the mother admitted that she was consulted at the time the parties' oldest child selected her four-year undergraduate college, but she contended that the father did not comply with the obligation to consult her regarding the selection of the child's school for her second year of college and, therefore, that her obligation to pay her share of the college expenses never arose ( see Pollack v. Pollack, 276 A.D.2d 613, 714 N.Y.S.2d 898; Matter of Citera v. D'Amico, 251 A.D.2d 662, 676 N.Y.S.2d 602; see generally Matter of Scala v. Wilkens, 69 A.D.3d 948, 893 N.Y.S.2d 269; Matter of Sebastiani v. Locatelli, 11 A.D.3d 701, 783 N.Y.S.2d 405). The father admitted that he never consulted the mother regarding the subject child's continued attendance at High Point University for the 2010–2011 academic year, i.e., her second year at this four-year university, contending he had no obligation to do so under the separation agreement. We agree with the father.

A stipulation of settlement is a contract subject to the principles of contract construction and interpretation ( see Matter of Meccico v. Meccico, 76 N.Y.2d 822, 559 N.Y.S.2d 974, 559 N.E.2d 668; Girgenti v. Girgenti, 81 A.D.3d 886, 917 N.Y.S.2d 258; Fishbein v. Fishbein, 72 A.D.3d 1021, 902 N.Y.S.2d 103; Andersen v. Andersen, 69 A.D.3d 773, 892 N.Y.S.2d 553). Accordingly, “[w]here the agreement's language is clear and unambiguous, the court should determine the intent of the parties based on that language without resorting to extrinsic evidence” ( Fishbein v. Fishbein, 72 A.D.3d at 1021–1022, 902 N.Y.S.2d 103). Here, the separation agreement did not provide that the mother was to be consulted regarding the subject child's choice of school on a yearly basis. Such an interpretation would effectively add a term to the separation agreement that did not exist under the guise of contractual interpretation ( see Lobacz v. Lobacz, 72 A.D.3d 653, 897 N.Y.S.2d 516; Cohen–Davidson v. Davidson, 291 A.D.2d 474, ...