By THE HON. RICHARD A. DOLLINGER AND CHRISTOPHER GENRICH
Daily Record Columnists
Everyone assumes their child will be a first-team All-American at something or the best in just about anything they try.
Divorcing parents are no different. But, who pays for all those budget-busting riding, golf, football, dance, robotics, soccer, cheerleading, fencing, hockey, singing, acting, baseball, lacrosse, field hockey lessons or the outfits, camps, travel and paraphernalia that inevitably accompany them?
Or, as one New York court queried: Which parent pays for flying lessons?
The New York courts seem to have different readings of the requirements for divorcing parents to pay for such extracurriculars. Some sweep extracurriculars into the apportionment of child expenses, even though the Domestic Relations Law does not explicitly require it. This tendency to read the statute in an expansive fashion should be a caution to divorcing parents to devise their own plan for paying for their child’s extracurriculars.
The term “extracurriculars” is nowhere defined in the Domestic Relations Law nor the Family Court Act. The Education Law has a broad definition of the term – limited to school-based activities – but no New York court has yet linked that broad definition to the obligations of divorcing parents to pay these expenses.
The central question is whether these types of extracurriculars constitute the now famous “add-ons,” which are governed by Domestic Relations Law § 240[1-b][c] &. These sections require a court to apportion unreimbursed health expenses, health insurance expenses and, in certain circumstances, child care expenses among parents based on the respective incomes.
Subdivision seven provides that courts may “determine educational expenses” or “enriched educational expenses” and these are also apportioned by income, NY DRL §240 1-b (c)(7). But, there is no mention of “extracurriculars” in this “required-to-be-apportioned” section of the law.
The Family Court Act provides no greater guidance. The statute provides that courts may order payment of “enriched educational” expenses on a “best interests” or “as justice requires” basis but there is no mention of financing extracurriculars, FCA §413(1)(c)(7),
In a literal reading of the statutes, some “recreation expenses” or commonly-described “extracurriculars” may be linked to “educational expenses” if those activities originate in schools. However, because the statute never mentions “extracurriculars,” the Legislature’s failure to include that term in the Domestic Relations Law strongly suggests that many expenses for parents – not linked to school-sponsored activities – are not subject to apportionment.
In fact, many parents, divorced and married, find that most extracurriculars include activities outside school – dance lessons, music lessons, Cub Scouts, swimming lessons, Little league baseball, club and house soccer and hockey teams, for example. These expensive costs are not financed by public schools but the child’s participation can easily add $1,500 to $2,000 in cost annually.
Despite the lack of Legislative direction, some New York courts have taken an expansive view that extracurriculars fall within the broad command of the Domestic Relations Law to apportion expenses between parents, based on income. In Fox. v. Fox, 44 AD 3d 998(2d Dep’t 2007), the appeals court concluded that child care, education and “extracurriculars” were considered statutory “add-ons.”
The Second Department continued that approach in Herlitz-Ferguson v. Herlitz-Ferguson, 48 AD 3d 418 (2d Dep’t 2008)(extracurriculars were included in statutory “add-ons”). In 2014, the Second Department reached a similar conclusion, affirming a trial court decision awarding a parent “child support add-ons” including “extracurricular activity expenses,” Lundon v. Lundon, 120 Ad 3d 1395 (2d Dep’t 2014), see also Kessler v. Kessler, 47 A.D.3d 892, 893 (2d Dep’t 2008)(including children’s extracurriculars in the apportioned expenses under DRL); Beth M. v. Joseph M., 12 Misc. 3d 1188(A)(sup. Ct. Nassau Cty 2006)(including extracurricular activities within the requirement for apportionment of expenses); P.D. v. L.D., 28 Misc. 3d 1232(A)(Sup. Ct. Westchester Cty 2010)(ordering parent to pay add-ons including extracurricular activities).
While some courts have obscured the line between “educational expenses” and “extracurriculars,” one court suggested that the DRL did not mandate apportionment of extracurriculars and instead these costs were subsumed in mandated supported under the Child Support Standards Act. In Duzant-Forlenza v. Wade, 242 N.Y.L.J. 103, p. 17 (Fam. Ct. Westchester Cty 2009), the court noted:
While a court may review generally the reasonable extracurricular activities of a child to vary upward a guidelines order as a best interest issue, there is no requirement that a court consider with specificity a laundry list of add-ons and make a determination regarding the necessity of and the non-custodial parent’s contribution to each activity …
To restate, contrary to popular usage, there is no requirement that a court consider the costs of dance, karate, religious training, cheerleading, class trips, class rings, proms, cellphones, cars and the like, and allocate the cost between the parents. The child’s needs, except for child care contribution and health needs contribution, are included in the CSSA amount of child support under “maintenance” predicated upon the percentage of the gross income adjusted for Guidelines. Accordingly, there is no basis for a court to consider each “add-on” item separately, Id.
Given this judicial backdrop and the lack of a clear direction in the statute for allocation of these costs, practitioners should define extracurriculars in any separation agreement and better thinking would suggest that “education-related extracurriculars” be segregated from “outside hobbies, clubs and sports.” The education-related activities will be apportioned by statute; the other “activities” are not subject to apportionment and the recipient of child support will be presumed to have to pay them without contribution from the other parent.
Second, divorcing parents need to clarify their understanding of which parent can commit a child to expensive activities. Joint custodial parents would each need to consent to a child’s participation in such activities and, if the expense is not apportioned, then the parent receiving child support – but no additional contribution to these added costs – may be reluctant to commit the child to participate.
Conversely, a sole custodial parent may be more than willing to commit a child to extracurriculars if the paying parent picks up most of the cost. Practitioners need to be attuned to – and plan to avoid – this potential aggravation to parents.
In some agreements, parents may agree to pay “mutually acceptable extracurricular activities” and at least one court held that that language did not require “express consent as a precondition to pay their share” and held that if the father knew – and participated in the sports activities but did not expressly consent prior to the child’s participation – he had to pay his share, Matter of Costopoulos v. Ferguson, 74 A.D.3d 1457 (3d Dep’t 2010).
Third, most parent should consider some cap on their annual contribution to these costs and if one parent wants to finance golf lessons for the next Tiger Woods – at a cost in excess of the cap – then they pay the cost without further contribution from the other parent.
Fourth, the lack of precision in an agreement may be costly to an inattentive parent. If all extracurriculars – regardless of their source – are lumped into the stipulation of settlement, New York courts have no difficulty enforcing a requirement that a non-custodial parent pay them, see A.P. v D.R., 41 Misc. 3d 1227(A)(Sup. Ct. Westchester Cty 2013). Conversely, if they are never mentioned in an agreement, parents may face a sizable hurdle in seeking to modify their agreements to have them paid by the parent paying base child support.
The parent seeking the change would have to demonstrate the costs were an unanticipated substantial change in circumstances, see Handel v. Handel, 54 A.D.3d 360 (2d Dep’t 2008): Matter of Asch v. Asch, 30 A.D.3d 513 (2d Dep’t 23006)(both denied modification for increased extracurricular costs)
But the hurdle of “unanticipated change in circumstances” may still be overcome. The Court of Appeals held that unanticipated costs for outside activities may increase the cost of a child and justify a modification of child support as a change in circumstances, Brescia v. Fitts, 56 N.Y.2d 132, 140 (1982).
The court, in reaching this conclusion before the implementation of the Child Support Standards Act, did not equate the “activities of a growing child” to extracurriculars but, an enterprising advocate might read “extracurriculars” into this equation and justify a modification on that basis, see Ward v. Ward, 79 AD 2d (2d Dep’t 1980)( children’s expenses have substantially changed as a result of additional extracurricular activities typically engaged in by growing children justified a modification).
Notably, these older cases, which appear to open the door to upward modifications based on increased extracurricular costs, seem to be trumped, in logic at least, by the post-1982 apportionment-based add-ons language in Domestic Relations Law § 240[1-b][c]&[7} and the more recent holdings in Handel v. Handel, 54 A.D.3d 360 (2d Dep’t 2008) and Matter of Asch v. Asch, 30 A.D.3d 513 (2d Dep’t 2006).
One bottom line to avoid: Don’t let these extracurricular costs hit the stratosphere before a parent yells “Geronimo” and grabs a finance parachute. In Costa-Daley v. Daley, 100 AD 3d 1198 (3d Dep’t 2012), the parents, having agreed to share educational expenses, sent their would-be aviator child off to an aeronautical academy. The child had “off-campus” airborne jaunts – sounds very expensive – which the trial court concluded were “reasonable college expenses” for which the parents, who agreed to a very broad definition of educational expenses, had to contribute.
A simple warning for divorcing and divorced couples with active children: Read your separation agreement, carefully, as it may be more financially important than your child’s hoped-for Division One scholarship.
For practitioners, make sure any agreement or stipulation directly deals with these escalating costs because courts may be unlikely to show compassion to overtaxed parents when their children’s needs – and, in the case of extracurriculars, desires – are in play.
Richard A. Dollinger is a member of the New York Court of Claims and an acting Supreme Court Justice in the matrimonial part in the Seventh Judicial District. Christopher Genrich is a senior at St. John Fisher College, president of the student government and entering law school this fall.