State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519640 

________________________________

In the Matter of LISA 

COVINGTON,

Respondent,

v MEMORANDUM AND ORDER

KEVIN J. BOYLE II,

Appellant.

________________________________

Calendar Date: February 20, 2015

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

__________

Cordell & Cordell, PC, Albany (J. Rochelle Cavanagh of

counsel), for appellant.

The Spada Law Firm, Albany (Justine L. Spada of counsel),

for respondent.

__________

Garry, J.

Appeal from an order of the Family Court of Albany County

(Maney, J.), entered January 7, 2014, which, in a proceeding

pursuant to Family Court Act article 4, denied respondent's

objections to the order of a Support Magistrate.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) were married in 1995 and have one child

together (born in 1995). The parties became estranged in 1997,

and Family Court thereafter entered an order upon consent

establishing child support and providing, as pertinent here, that

"the parties shall contribute to their daughter's college

education as provided in their separation agreement and/or

divorce judgment to be made and executed hereafter." The
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parties' separation agreement and the judgment of divorce, which

followed in 1999, failed to make any specific direction relative

to the college expenses. However, both the separation agreement

and divorce judgment did continue and incorporate, without

merging, the terms of the prior support order. The judgment of

divorce further provided that the father must "pay basic child

support and contribute to . . . future educational expenses, in

accordance with the [prior support order]." In 2013, in

anticipation of the child's enrollment in college, the mother

petitioned for an order directing the father to contribute to the

child's college expenses. Following a hearing, the Support

Magistrate directed the father to pay a 70% pro rata share of the

child's college expenses. Family Court denied the father's

written objections, and the father appeals. 

Where college expenses are addressed in a child support

agreement or order that is incorporated without merger into a

judgment of divorce, a party seeking to modify that provision

must demonstrate "an unanticipated and unreasonable change in

circumstances" (Matter of Boden v Boden, 42 NY2d 210, 213 [1977];

see Hejna v Reilly, 26 AD3d 709, 711 [2006]).1 The father argues

that, because the mother made no such showing, Family Court

erred. We find, however, that read together, the language set

forth in the divorce judgment and in the prior child support

order incorporated therein supports the mother's assertion that,

although her application was styled as a modification, it should

instead be viewed as a request for enforcement. The clear

language of these documents reveals that the parties initially

considered the child's pursuit of a college education, intended

to contribute to that pursuit, and "contemplated a later

determination by the court concerning the sharing of educational

expenses when appropriate" (Matter of Antes v Miller, 304 AD2d

892, 893 [2003]). As the mother was merely seeking a

determination that had been previously contemplated in their

1 Though not applicable here, we note that a party seeking

to modify an agreement or stipulation entered into on or after

October 13, 2010 must instead demonstrate a substantial change in

circumstances (see Family Ct Act § 451 [3] [a]; L 2010, ch 182,

§ 13). 
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agreement, rather than seeking "to readjust[] the respective

obligations of the parents" (Matter of Brescia v Fitts, 56 NY2d

132, 139 [1982]), no showing of unusual or unanticipated

circumstances was required.

The father further contends that Family Court erred in

attributing per diem payments that he received from his employer

as income. The father testified that he received $1,200 per week

to cover expenses associated with commuting to Kansas from North

Carolina for his employment. In support of this testimony, he

submitted tax forms and a pay stub showing that the per diem

payments were designated as nontaxable compensation, and argues

that the court erred in including them in his income. We

disagree. Under the Child Support Standards Act (see Family Ct

Act § 413), Family Court is vested with "considerable discretion"

in determining what sources of funds may be included in a party's

income for child support purposes (Matter of Susan M. v Louis N.,

206 AD2d 612, 613 [1994]). Parental income is not restricted to

a parent's taxable income, but may include, at the court's

discretion, "meals, lodging, memberships, automobiles or other

perquisites that are provided as part of compensation for

employment to the extent that such perquisites constitute

expenditures for personal use, or which expenditures directly or

indirec[t]ly confer personal economic benefits" (Family Ct Act §

413 [1] [b] [5] [iv] [B]).

Here, the father submitted a spreadsheet generally

outlining his business expenses. Notably, the spreadsheet

included costs that would have been incurred regardless of his

business travel, including, among other things, food, automobile

insurance and registration, and a cellular phone. The father

failed to submit any documentation to show that his employer

limited the use of his per diem payments to business expenses,

nor did he provide receipts or other documentation of any

specific expenditures made. Given the scarcity of proof as to

how the per diem payments were expended, and recognizing that "a

[h]earing [e]xaminer or court is not bound by a parent's own

account of his or her financial situation" (Matter of Ciampi v

Sgueglia, 252 AD2d 755, 756-757 [1998]; see Matter of Vetrano v

Calvey, 102 AD2d 932, 933 [1984]), we find no abuse of discretion

in Family Court's inclusion of the per diem payments in the
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father's income (see Matter of Perel v Gonzalez, 105 AD3d 552,

553-554 [2013], lv denied 21 NY3d 865 [2013]; Bellinger v

Bellinger, 46 AD3d 1200, 1201-1202 [2007]; Skinner v Skinner, 241

AD2d 544, 545 [1997]; see generally Matter of Massey v Evans, 68

AD3d 79, 84 [2009]).

Finally, we reject the father's contention that Family

Court erred in not reducing his basic child support obligation to

account for his contributions to the child's college room and

board expenses. While a court may exercise its discretion to

reduce a parent's basic child support obligation to reflect

contributions made to a child's college expenses (see Matter of

Kirschner v Kirschner, 119 AD2d 962, 963 [1986]), "the

availability and amount of such a credit depend upon the facts

and circumstances in the particular case, taking into account the

needs of the custodial parent to maintain a household and provide

certain necessaries" (Matter of Apjohn v Lubinski, 114 AD3d 1061,

1064 [2014], lv denied 23 NY3d 902 [2014] [internal quotation

marks, brackets and citation omitted]).

Here, the record reveals that the child will continue to

reside in the mother's home during school vacations and breaks. 

The mother testified that she would use the father's child

support payments to pay for the child's dormitory supplies,

clothes, cellular phone bill, health and car insurance and

transportation expenses to and from college. We find no error in

Family Court's determination that no credit should be applied to

the father's basic child support obligation (see Matter of

Haessly v Haessly, 203 AD2d 700, 702-703 [1994]).

Lahtinen, J.P., Rose and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court