Pape v. Pape

205 A.D.3d 920

166 N.Y.S.3d 574 (Mem)

Kelly PAPE, appellant,

v.Martin PAPE, respondent.

2020–03061

Index No. 4972/14

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

Submitted—March 4, 2022

May 18, 2022

Quatela Chimeri, PLLC, Hauppauge, NY (Christopher J. Chimeri and Tristan J. Werfelman of counsel), for appellant.

Long Tuminello, LLP, Bay Shore, NY (Jared R. Artura of counsel), for respondent.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment dated May 19, 2016, and a related child support proceeding that was transferred to the Supreme Court, Suffolk County, and consolidated with the matrimonial action for disposition, the plaintiff appeals from an order of the Supreme Court, Suffolk County (John J. Leo, J.), dated February 21, 2020. The order, without a hearing, in effect, denied the plaintiff's petition to enforce the provisions of the parties’ stipulation of settlement, which was incorporated but not merged into the judgment of divorce, governing college expenses for the parties’ children, and dismissed the proceeding.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's petition is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith.

The parties are divorced and have two children together. The parties entered into a stipulation of settlement dated December 10, 2015 (hereinafter the stipulation), which was incorporated but not merged into their judgment of divorce dated May 19, 2016. Article XVII of the stipulation, entitled "College Education," provided, in relevant part, that "[t]he parties shall share the costs and expenses for the college education for the infant issue. The [plaintiff] shall pay fifty (50%) percent of the costs and expenses for the child's [sic] college education and the [defendant] shall pay fifty (50%) of said costs and expenses." Article XVII further provided that "[t]he parties[’] liability for payment of said costs and expenses is limited to four years of college."

In September 2019, the plaintiff filed a petition in the Family Court, Suffolk County, seeking to enforce the provisions of the stipulation governing the parties’ obligations to contribute to the children's college education expenses and costs. At the time, the parties’ older child was 21 years old and their younger child was 18 years old. On the plaintiff's application, the proceeding was transferred to the Supreme Court, Suffolk County.

The parties disputed when the defendant's obligation to contribute to the children's college education expenses and costs terminated. The plaintiff contended that the defendant was obligated to pay 50% of each child's college education expenses and costs for a period of four years, irrespective of the age of the child. The defendant, on the other hand, contended that his obligation to contribute to college expenses and costs terminated when the child reached the age of 21. In an order dated February 21, 2020, the Supreme Court, without a hearing, upon determining that, pursuant to the stipulation, the defendant was only obligated to contribute to the college education expenses and costs for the parties’ children until the children turned 21 years old, in effect, denied the petition and dismissed the proceeding. The plaintiff appeals.

In the absence of a voluntary agreement, a parent may not be directed to contribute to the college education of a child who has attained the age of 21 years (see Sinnott v. Sinnott, 194 A.D.3d 868, 878, 149 N.Y.S.3d 441 ; Matter of Calvello v. Calvello, 20 A.D.3d 525, 527...