Tuesday, October 25, 2016


Friedman v Friedman 2016 NY Slip Op 06469 Decided on October 5, 2016 Appellate Division, Second Department:

"Contrary to the defendant's contention, the Supreme Court properly concluded that he did not establish any basis to modify the stipulation or the judgment of divorce (see generally Matter of Brescia v Fitts, 56 NY2d 132). Further, we find no reason to disturb the court's determination that the plaintiff sufficiently complied with the terms of the stipulation requiring the parties to "meet and jointly discuss the selection of college for each child and, with input from the child, agree on the selection of a college for each child" (see Gretz v Gretz, 109 AD3d 788, 789; Matter of Sebastiani v Locatelli, 11 AD3d 701, 701; Regan v Regan, 254 AD2d 402, 403; cf. Halligan v Wesdorp, 264 AD2d 466, 467).

Contrary to the defendant's contention, the Supreme Court did not err in rejecting his request to impose a SUNY cap on his obligation because neither the stipulation nor the judgment of divorce made reference to a SUNY cap (cf. Balk v Rosoff, 280 AD2d 568, 569; Halligan v Wesdorp, 264 AD2d at 467; see generally Matter of Heinlein v Kuzemka, 49 AD3d 996, 998).

Additionally, the Supreme Court properly denied that branch of the defendant's motion which was, in the alternative, for a determination that his pro rata share of the college expenses was 78% and the plaintiff's share was 22%, and granted that branch of the plaintiff's cross motion which was, in effect, for a determination that the defendant's pro rata share was 100%. A separation agreement that is incorporated, but not merged, into a judgment of divorce is a legally binding independent contract between the parties which must be interpreted so as to give effect to the parties' intentions (see Matter of Gravlin v Ruppert, 98 NY2d 1, 5). Here, the parties' stipulation specifically provided, in pertinent part: "[T]he parties agree that the children's college education expenses . . . shall be financed by the custodial accounts currently maintained for their benefit, as well as any future accounts that may be established for their benefit. . . . If the children's college education costs exceed the amount of the respective custodial accounts, the parties shall contribute to the remaining cost of the children's education on a pro rata basis based upon their respective incomes" (emphasis added). Thus, pursuant to the express terms of the stipulation, after the amounts available in the custodial accounts were extinguished, the parties were required to contribute to the children's additional college costs on a pro rata basis (see generally Matter of Heinlein v Kuzemka, 49 AD3d at 998). Morever, as the stipulation did not include operative language as to whether the parties would maintain employment and there was no dispute that the plaintiff was unemployed, the court did not err in concluding that the plaintiff's pro rata share of the additional college costs was 0%."

For a discussion of steps on drafting SUNY cap language, see  http://nydailyrecord.com/2014/01/24/commentary-a-practitioners-15-step-primer-on-the-suny%E2%80%88cap/

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