                           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
                              -2-                519451

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 decision-
making 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
                              -3-                  519451

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 decision-
making 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
