SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1008 

CAF 15-01015 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ. 

 

IN THE MATTER OF JOHN F. LEWIS, 

PETITIONER-RESPONDENT-APPELLANT, 

V MEMORANDUM AND ORDER

STEFANY V. LEWIS, 

RESPONDENT-APPELLANT-RESPONDENT. 

 

LAW OFFICES OF RANDEL A. SCHARF, COOPERSTOWN (RANDEL A. SCHARF OF

COUNSEL), FOR RESPONDENT-APPELLANT-RESPONDENT. 

DONALD J. MURPHY, UTICA, FOR PETITIONER-RESPONDENT-APPELLANT.

 

Appeal and cross appeal from an order of the Family Court, Oneida

County (Randal B. Caldwell, J.), entered March 17, 2015 in a

proceeding pursuant to Family Court Act article 4. The order denied

the respective objections of the parties to the order of a Support

Magistrate. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting petitioner’s fourth and

seventh objections and respondent’s second objection in part and

vacating the third, fourth, seventh and eighth ordering paragraphs of

the order of the Support Magistrate, and as modified the order is

affirmed without costs, and the matter is remitted to Family Court,

Oneida County, for further proceedings in accordance with the

following memorandum: Petitioner father previously appealed from a

judgment of divorce, and we remitted the matter to Supreme Court for

further proceedings (Lewis v Lewis, 70 AD3d 1432). Upon remittal, the

parties entered into a stipulation that was reduced to an order in

April 2010. In June 2012, the parties consented to a modification of

the judgment and April 2010 order. In 2014, the father filed

petitions to modify, and respondent mother filed an enforcement

petition. A hearing was held before a Support Magistrate, who issued

an order granting one petition by the father and denying the other

petition, and granting in part the mother’s petition. The parties

filed objections, which Family Court denied and dismissed. The mother

appeals and the father cross-appeals. We agree in part with the

mother on her appeal and with the father on his cross appeal.

The primary issue raised at the hearing concerned the parties’

obligation to pay for the college expenses of two of their children. 

Paragraph 40 of the judgment of divorce provided that the parties

“shall pay for that portion of the children’s college tuition charges
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CAF 15-01015 

which are not covered by the college tuition benefit program through

the [mother’s] employment, including tuition, room and board for a

maximum of four years, in proportion to their respective incomes,

regardless of which college the children attend.” This paragraph was

not stipulated to by the parties but rather was ordered by Supreme

Court, and no issue was raised regarding it by the father on his prior

appeal from the judgment. Although the father contends that Supreme

Court erred in ordering him to pay college expenses for the children,

we conclude that, having failed to raise the issue on the appeal from

the judgment, the father is precluded from raising that contention now

(see generally CPLR 5513 [a]).

We agree with the mother that Family Court erred in denying her

objection to the Support Magistrate’s determination to reduce the

college expenses by the college tuition benefit program (CTBP)

benefit. The CTBP benefit entitled the children to free tuition if

they attended Hamilton College, or half off the tuition of any other

school, up to a maximum of 50% of Hamilton’s tuition. The mother,

however, left her full-time employment at Hamilton College before her

children enrolled in college, and her children were therefore no

longer eligible to receive the CTBP benefit. Thus, the children’s

college expenses “are not covered by” the CTBP benefit, and the

Support Magistrate therefore erred in reducing the college expenses by

the CTBP benefit. Contrary to the mother’s further contention,

however, the court properly denied her objection to the Support

Magistrate’s further reduction of the college expenses by the amount

contributed by the grandparents as a gift to the children (see Regan v

Regan, 254 AD2d 402, 403).

We reject the mother’s contention that the court erred in denying

her objection to the determination of the Support Magistrate that the

father did not willfully violate paragraph 40 of the judgment of

divorce, particularly considering the uncertainty regarding the actual

amount of college expenses the parties were obligated to pay. We

reject the father’s contention, however, that the court erred in

denying his objection to the determination of the Support Magistrate

that he willfully failed to disclose his income for the years 2012 and

2013 to the mother. The June 2012 order provided that the parties

were to report their annual incomes to each other by February 15th of

each year, by providing a copy of their form W-2. The mother

testified that, despite requesting the father’s W-2’s, she did not

receive the father’s 2012 or 2013 W-2’s by the deadlines.

We agree with the father that the court erred in denying his

fourth objection to the determination of the Support Magistrate that

obligated him to pay college expenses for one of the children incurred

after his 21st birthday. “Absent an agreement, a court may not direct

a parent to pay support in the form of college expenses on behalf of a

child who has attained the age of 21 years” (Schonour v Johnson, 27

AD3d 1059, 1060; see Attea v Attea, 30 AD3d 971, 972, affd 7 NY3d

879). We also agree with the father that the court erred in denying

his seventh objection to the determination of the Support Magistrate. 

The June 2012 order provided that the father would continue the

children on his health insurance plan and be responsible for 100% of
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CAF 15-01015 

the health insurance premiums, and the mother would be responsible for

all uncovered medical expenses. No issue was raised by the parties in

their respective petitions regarding health insurance or unreimbursed

medical expenses, and the Support Magistrate erred in sua sponte

modifying the June 2012 order by ordering the father to pay his pro

rata share of the unreimbursed medical expenses. We therefore modify

the order by granting the mother’s second objection in part and the

father’s fourth and seventh objections and vacating the third, fourth,

seventh and eighth ordering paragraphs of the Support Magistrate’s

order, and we remit the matter to Family Court for a new calculation

of college expenses.

We have considered the parties’ remaining contentions and

conclude that they are without merit.

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court