        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
