State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 8, 2015 519451 

________________________________

In the Matter of DAVID C.

BRENNAN,

Appellant,

v MEMORANDUM AND ORDER

LAURA KESTNER, Formerly Known

as LAURA KESTNER-BRENNAN,

Respondent.

________________________________

Calendar Date: November 19, 2014

Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.

__________

Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany

(Stephen C. Prudente of counsel), for appellant.

Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer Powers

Rutkey of counsel), for respondent.

Eric R. Gee, Albany, attorney for the child.

__________

Rose, J.

Appeal, by permission, from an order of the Family Court of

Albany County (Kushner, J.), entered July 25, 2014, which, in a

proceeding pursuant to Family Ct Act article 6, partially granted

respondent's motion to dismiss the petition.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) are the divorced parents of a son born

in 2005. The parties' separation agreement, which was

incorporated but not merged into the judgment of divorce,

provides that they share nearly equal parenting time and joint
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legal custody of the child, with the mother having primary

physical custody. At the time the parties separated in 2012,

they enrolled the child in first grade at St. Pius X Catholic

School in Albany County. According to their separation

agreement, the father is to pay the costs incurred for the child

to attend St. Pius, and "the child shall attend school in the

district where the [m]other resides should the child no longer

attend St. Pius." The agreement also provides that the parties

may relocate within Albany, Rensselaer, Saratoga or Schenectady

Counties. 

When the mother moved to the Town of Malta, Saratoga County

in the summer of 2013 and expressed her desire to enroll the

child in the public school district there, the father objected

and the child continued to attend St. Pius. The mother again

raised the issue that winter and, when she persisted the

following summer, the father commenced this proceeding seeking,

among other things, to modify the agreement to give him decisionmaking authority over whether the child would continue to attend

St. Pius. The mother then moved to dismiss the petition and

Family Court partially granted the motion without a hearing,

holding that the agreement allowed her to relocate to Saratoga

County and anticipated that the child would not necessarily

attend St. Pius, in which case he was required to attend school

in the mother's district. Accordingly, the court found that the

father had failed to state a prima facie case for modification of

the decision-making authority over where the child attends

school. The father appeals. 

We must agree with the father's contention that Family

Court erred by failing to hold a hearing and by misconstruing the

separation agreement so as to give the mother the unilateral

ability to withdraw the child from St. Pius. A separation

agreement incorporated but not merged into a divorce judgment is

an independent contract that "'must be interpreted so as to give

effect to the parties' intentions'" (Matter of Stewart v Stewart,

93 AD3d 907, 908 [2012], quoting Matter of Frank v Frank, 88 AD3d

1123, 1124 [2011]; accord Desautels v Desautels, 80 AD3d 926, 928

[2011]). Here, Family Court misconstrued the agreement to the

extent that it concluded that the mother's relocation controlled

the choice of school. While the agreement provides that the
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child will attend school in the mother's district should he no

longer attend St. Pius, it does not specifically address any

event that would result in the child no longer attending St.

Pius. Inasmuch as St. Pius has no high school, the child will

necessarily cease attendance there at the end of the eighth

grade. Until then, because the parties have joint legal custody,

the decision to withdraw the child must be based on their mutual

agreement (see e.g. Mann v Mann, 83 AD3d 1146, 1147 [2011]).

Finally, the father set forth detailed allegations

regarding the parties' disagreement as to the child's continued

attendance at St. Pius. Liberally construing these allegations,

the father has "set forth sufficient facts which, if established

at an evidentiary hearing, could afford a basis for granting the

relief sought" (Matter of Schnock v Sexton, 101 AD3d 1437, 1438

[2012]; see Matter of Twiss v Brennan, 82 AD3d 1533, 1535 [2011];

Matter of Williams v Mullineaux, 271 AD2d 869, 870 [2000]). 

Lahtinen, J.P., Garry and Devine, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as partially granted

respondent's motion and dismissed that part of the petition

seeking to modify the separation agreement regarding decisionmaking authority over whether the child would continue to attend

St. Pius Catholic School through eighth grade; motion denied to

that extent and matter remitted to the Family Court of

Schenectady County for further proceedings not inconsistent with

this Court's decision; and, as so modified, affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court