Tuesday, August 19, 2014

NEW YORK MATRIMONIAL LAW - MODIFICATIONS TO SETTLEMENTS

See Matter of Matter of Kristina P. (Joseph Q.) 2014 NY Slip Op 04109 Decided on June 5, 2014 Appellate Division, Third Department:

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The parties' oral stipulation and opting out agreement, which was incorporated but not merged into their 2007 judgment of divorce, obligated the father to pay child support to the mother in the amount of $485 per week, but was silent as to responsibility for the cost of the children's educational expenses. In October 2011, as a result of difficulties the child was experiencing in public school, the mother asked for the father's consent to enroll the child in a private Catholic school. The father ultimately agreed, on the condition that the mother take full responsibility for payment of the child's tuition, and the parties' agreement was memorialized in a written, notarized statement. The child was then enrolled in the private school and, at the end of that school year, the mother commenced this modification proceeding seeking to, among other things, require the father to pay his pro rata share of the child's educational expenses. After a hearing, a Support Magistrate determined, as relevant here, that the father was obligated to pay 71% of the child's private school tuition, beginning with the 2012-2013 academic year. Family Court subsequently denied the father's objections and this appeal by the father ensued.

We affirm. Initially, we conclude that the father's reliance on the parties' written agreement that the mother would bear the cost of the child's tuition is misplaced, as Family Court [*2]has no jurisdiction to enforce such independent contract (see Matter of Hirsch v Schwartz, 93 AD3d 1114, 1115 [2012]; Matter of Zamjohn v Zamjohn, 158 AD2d 895, 896 [1990]).
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