Curley v. Klausen

110 A.D.3d 1156, 972 N.Y.S.2d 743

This text of 110 A.D.3d 1156 (Curley v. Klausen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Curley v. Klausen, 110 A.D.3d 1156, 972 N.Y.S.2d 743 (N.Y. Ct. App. 2013).

Opinion

McCarthy, J.

Appeals from two orders of the Family Court of Fulton County (Skoda, J.), entered June 24, 2011 and January 31, 2012, which, among other things, dismissed respondent’s application, in four proceedings pursuant to Family Ct Act article 4, to modify a prior order of support.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a son (born in 1991) and a daughter (born in 1993). The parties’ 1997 divorce decree incorporated a stipulation that set forth, among other things, the father’s child support obligations and the parties’ obligations to contribute to the children’s college expenses. In 2010, the mother filed petitions seeking modification of a prior support order and alleging that the father violated an order by, among other things, failing to contribute to college expenses. The father answered, asserting the defense of parental alienation, and filed petitions alleging a violation of a prior court order and seeking to have his child support obligation suspended. Family Court first held a hearing on the father’s defense and determined that the mother did not engage in parental alienation. Following a hearing addressing the remaining aspects of the proceedings, the court, among other things, dismissed the mother’s petition seeking modification of support, but ordered the father to pay 82% of the children’s college expenses. The father appeals.1

Family Court did not err in dismissing the father’s parental [1157]*1157alienation defense.2 Despite the parental duty to support a child until age 21 (see Family Ct Act § 413 [1] [a]), “where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended” (Matter of Crouse v Crouse, 53 AD3d 750, 751 [2008]; see Matter of Dobies v Brefka, 83 AD3d 1148, 1152 [2011]; Usack v Usack, 17 AD3d 736, 737-738 [2005]). To suspend payments, the father here was required to show that the mother “intentionally ‘orchestrated and encouraged the estrangement of [the father] from the children’ or that she actively interfered with or deliberately frustrated his visitation rights” (Matter of Crouse v Crouse, 53 AD3d at 752, quoting Usack v Usack, 17 AD3d at 739).

While the father regularly called the children and sent them messages at the time of the hearing and for several years prior, he was absent from their lives for at least two years, has not made much effort to schedule or encourage visitation, and did not file a petition to enforce his visitation despite his claims that the mother has interfered for several years. The children both testified that the mother encouraged them to call the father and acknowledge special occasions, but they often chose not to do so. The daughter rarely answered her phone when the father called and rarely responded to his messages. The mother may have told the children to call the father and contacted him to have a visit when she was near his home, but she mainly left it up to the children to contact him and arrange visitation. Considering all of the testimony, it appears that the children’s alienation from the father resulted from a “lack of effort by all concerned,” including the father and both children as well as the mother (Matter of Crouse v Crouse, 53 AD3d at 752). Accordingly, the father did not establish his defense and he was not entitled to a suspension of his child support.

Family Court properly determined that the father must pay his proportionate share of the children’s college expenses pursuant to the parties’ stipulation of settlement. The stipulation is a contract between the parties and must be interpreted by enforcing its plain language if unambiguous, and otherwise by discern[1158]*1158ing the parties’ intentions (see Matter of Frank v Frank, 88 AD3d 1123, 1124 [2011]; Matter of Lerman v Haines, 85 AD3d 1248, 1249 [2011]). The relevant terms of the stipulation provide: “[B]oth parties agree they shall pay for a college education for their children based upon their then existing respective incomes, after the children exhaust all loan, grant and scholarship opportunities . . . Should the parties not be able to agree on the college that the children shall attend, either party reserves the right to apply to a court of appropriate jurisdiction for the decision of the court and the amount of their respective payment.” The father does not argue that he disagrees with the children’s choices to attend certain colleges. He instead contends that he is relieved from paying college expenses altogether because the mother did not confer and agree with him regarding the colleges. The stipulation does not provide him with such relief (see Matter of Frank v Frank, 88 AD3d at 1124). The stipulation allows either parent to seek court intervention concerning the college choice or amount of payment, if the parties are not able to agree. Despite the father being aware that the children were applying to and attending college, he did not seek such intervention, but the mother has done so in one of the instant proceedings. Thus, pursuant to the stipulation, the court was authorized to determine the amount that each party should pay towards the college expenses (see Matter of Lerman v Haines, 85 AD3d at 1249-1250).

The question then becomes whether Family Court correctly calculated the parties’ respective obligations for the college expenses. In the oral stipulation, the mother’s counsel stated that the parties would pay such expenses “based upon their then existing respective incomes.” In a later clarification during the stipulation, however, the father’s counsel specified that “both parties are going to contribute to the college expenses as their incomes allow,” which the mother’s counsel further clarified as “[biased upon the then existing financial ability to pay.” Unfortunately, these so-called clarifications created confusion, because “existing respective incomes” does not necessarily mean the same thing as “as their incomes allow” or “existing financial ability to pay.” We resolve this ambiguity by requiring the parties to pay college expenses based on their financial ability to pay, as this was the last clarification placed on the record during the stipulation, and the two clarifications evince the parties’ intentions to contribute based on their ability to pay, which takes into account more than just gross income.

In determining child support or related expenses, a court may impute income to a parent based on that party’s failure to seek [1159]*1159more lucrative employment that is consistent with his or her education, skills and experience (see Matter of Bianchi v Breakell, 48 AD3d 1000, 1003 [2008]; see also Matter of Rubley v Longworth, 35 AD3d 1129, 1130 [2006], lv denied 8 NY3d 811 [2007]). Imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay (see Matter of Kasabian v Chichester, 72 AD3d 1141, 1141 [2010], lv denied 15 NY3d 703 [2010]). Thus, imputed income may be attributed to a party as long as the court articulates the basis for imputation and record evidence supports the calculations (see Pulver v Pulver, 40 AD3d 1315, 1318 [2007]).

Here, Family Court accepted the mother’s income as $15,000, without imputing any income to her.

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48 A.D.3d 912 (Appellate Division of the Supreme Court of New York, 2008)
Bianchi v. Breakell
48 A.D.3d 1000 (Appellate Division of the Supreme Court of New York, 2008)
Crouse v. Crouse
53 A.D.3d 750 (Appellate Division of the Supreme Court of New York, 2008)
Kasabian v. Chichester
72 A.D.3d 1141 (Appellate Division of the Supreme Court of New York, 2010)
Disidoro v. Disidoro
81 A.D.3d 1228 (Appellate Division of the Supreme Court of New York, 2011)
Dobies v. Brefka
83 A.D.3d 1148 (Appellate Division of the Supreme Court of New York, 2011)
Lerman v. Haines
85 A.D.3d 1248 (Appellate Division of the Supreme Court of New York, 2011)
Frank v. Frank
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Nathan O. v. Jennifer P.
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Bluebook (online)
110 A.D.3d 1156, 972 N.Y.S.2d 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curley-v-klausen-nyappdiv-2013.