                            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
                              -4-                519640

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.
                        -5-                  519640

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
