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Matrimonial Matters: The devil is in the Appellate Division details

Sara Stout Ashcraft

Sara Stout Ashcraft

Two appellate cases delve into specifics in dealing with the issues of child support and children’s college costs. While sweeping legal principles tend to be the norm for cases getting popular attention, legal practitioners often look for details that can provide guidance when faced with particular fact patterns.

This is particularly true for family lawyers, as the applicable statutes leave much up to the court’s discretion, and trying to discern exactly how the appellate courts are leaning within that discretionary range dominates many attorney discussions.

Below are two recent cases which address child support and college expenses; one from the Second Department and one from the Fourth Department.

Second Department

In Dougherty v. Dougherty (2013-01636, 2d Dept., 2015), the Second Department was faced with appeals and cross appeals of a divorce judgment. Issues in dispute included child support and payment of college costs.

On the issue of payment of the parties’ son’s college costs, the Appellate Court backed the trial court’s decision to apportion the college costs between the parties on a pro rata basis. However, the Second Department took issue with the trial court’s failure to provide “that when a child is living away from home while attending college, the [father’s] monthly child support obligation shall be reduced or awarding the [father] a credit against his child support obligation for any amounts that he contributes toward college room and board expenses for that child during those months.” The matter was remanded to the trial court to determine the father’s child support obligation in light of his payment toward college costs.

Fourth Department

In D’Amato v. D’Amato (CA 15-00151, 4th Dept., 2015), the Fourth Department approached the child support/college costs issue differently. The Appellate Court found that the trial court had “erred in refusing to direct the [father] to contribute to the cost of the son’s education at a private college.”

The court continued, “Upon consideration of the parents’ educational backgrounds, the child’s scholastic ability, and the parents’ ability to pay, we conclude that [the father’s] contribution should be 50% of what it would annually cost to send his son to a college in the State University of New York (SUNY) system … with a credit for the $5,000 that [the father] contributed to the son’s college expenses pursuant to a prior order. Inasmuch as we are unable to determine the annual cost of attending a college in the SUNY system from the record on appeal, we remit the matter to Supreme Court to calculate the amount of [that] contribution.”

Note that the Fourth Department chose to limit the father’s contributions to half of what it would cost for the son to attend a SUNY school, even though it appears that the child was attending a private institution. (Local practitioners will recognize this as the frequently applied “SUNY cap.”) Then the court raised the issue of whether any child support credit might be due the father for his payment toward his son’s college costs, but said only, “We note that, upon remittal, the court may consider whether [the father] is entitled to a credit against child support for college expenses, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries.”

Two appellate courts and two ideas on parents’ payment of college costs and whether such payments need to be factored into child support calculations. New York attorneys trying to read the tea leaves of appellate decisions continue to need to remember that the state’s four Appellate Departments have a long history of producing different — and at times, completely contradictory — interpretations regarding the same issues.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.


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