Tuesday, May 10, 2016


Michael J.D. v Carolina E.P. 2016 NY Slip Op 01252 Decided on February 18, 2016 Appellate Division, First Department:

" Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.

While a court may direct a parent to contribute to a child's educational expenses, "even in the absence of special circumstances or a voluntary agreement of the parties" (Pittman, 127 AD3d at 757), in order to do so, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice (see Family Court Act § 413[1][c][7]; Domestic Relations Law § 240[1-b][f]; Manno v Manno, 196 AD2d 488, 491 [2d Dept 1993]). The trial court articulated no reason for ordering plaintiff to pay for private school, other than the informal discussions the parties had about their son's future while they briefly lived together, when the child was only a few months old. At the time of trial, the child was not yet school age, he was not enrolled in any regular educational program, and there is no record that the child has any special needs or gifts (see Friedman v Friedman, 216 AD2d 204 [1st Dept 1995] [religious grade school appropriate given religion's integral part of the family's lifestyle]; Matter of Prystay v Avildsen, 251 AD2d 87 [1st Dept 1998] [child had attended private school for five years and had only one year left]). The circumstances of these parties and their son does not present a justifiable basis to impose a private school obligation on plaintiff. Plaintiff's income, as it was determined by the trial court even after drawing adverse inferences to his claims, was not at a sufficiently high level that it alone provided a sufficient [*5]basis for requiring private school for the child.

The trial court also ordered that, commencing with the 2012-13 academic year until the child's graduation from high school, plaintiff is responsible for paying 100% of the child's extracurricular activities including after school, weekend and summer activities. No benchmark was provided on what these activities could include and there was no cap on how much they could cost. These expenses are not expressly enumerated add on expenses in the CSSA and the trial court failed to articulate why a deviation requiring their separate payment was appropriate in this case. While under certain circumstances these expenses may appropriately be considered an add on for child care (Domestic Relations Law § 240[1-b][c][4]; Family Court Act § 413[1][c][4]); Sieratzki v Sieratzki, 8 AD3d 552, 554 [1st Dept 2004]), here no recovery of child care costs was requested or warranted because defendant does not work or go to school and it is not her intention to do so. Consequently, in order for these additional expenses to be properly added to basic child support, the trial court needed to articulate the basis for the deviation. Only by articulating the factors relied on in deciding to deviate from the presumptively correct basic child support can a trial court justify its decision to deviate therefrom because the exercise of judicial discretion in child support awards is narrowly circumscribed (Rubin, 107 AD3d 60, 72; see also Bohnsack v Bohnsack, 185 AD2d 533, 535 [3d Dept 1992]). Given the parties' brief time living as a family, it cannot be said that a standard of living was established for the child. The trial court primarily based its award on the conclusion that had the family remained intact, the child, as the son of a lawyer, would have probably enjoyed a certain standard of living. The consideration of this solitary factor, coupled with the court's own determination of the parties' financial resources, does not, however, support the addition of unlimited add on extracurricular expenses that deviate from basic child support."

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