Filed Date: 2/7/2012
Status: Precedential
Modified Date: 11/1/2024
A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation (see Rainbow v Swisher, 72 NY2d 106 [1988]; De Luca v De Luca, 300 AD2d 342 [2002]; Girardin v Girardin, 281 AD2d 457 [2001]). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v Slatt, 64 NY2d 966 [1985]; see also De Luca v De Luca, 300 AD2d at 342). A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning
In addition, although a noncustodial parent who is paying child support and is contributing to the expenses of a child’s college education is entitled to a credit for the amounts contributed to college expenses during periods when the child lives away from home, such a credit covers only those expenses associated with the child’s room and board, rather than college tuition (see Matter of Levy v Levy, 52 AD3d 717, 718 [2008]; Lincer v Lincer, 30 AD3d 381, 382 [2006]; Navin v Navin, 22 AD3d 474, 476 [2005]; Imhof v Imhof, 259 AD2d 666, 667 [1999]). Here, the defendant’s formula for calculating the parties’ pro rata share did not account for the distinction between tuition expenses and expenses related to room and board. Rather, the defendant, in effect, credited all of the child support payments towards the payment of all of the college expenses.
Finally, inasmuch as the parties’ pro rata share of college expenses is based, in part, on their respective incomes, the plaintiff was entitled to production of the defendant’s income tax returns and W-2 statements for the years 2003 through 2009. Indeed, the record is virtually devoid of any documentary evidence demonstrating how much each of the parties earned during the time that the children attended college. Consequently, it is not possible to determine the pro rata shares of the parties or the amount of credit the defendant should have received for child support payments. Accordingly, the matter must be remitted to the Supreme Court for further proceedings, including a hearing if warranted, and a new determination of that branch of the plaintiffs motion which was for leave to enter a money judgment for alleged overpayment of her pro rata share of college