HANGARTNER SCHUCHMANN v. HANGARTNER (2008)

Order, Supreme Court, New York County (Saralee Evans, J.), entered April 21, 2006, which, insofar as appealed from as limited by the briefs, denied defendant's motion seeking a modification of the visitation schedule set forth in the parties' separation agreement, and denied plaintiff's cross motion seeking reimbursement for tutoring expenses for the couple's child, and for attorney's fees, unanimously affirmed, without costs.

Defendant failed to show the existence of a material change of circumstances to warrant a modification of the separation agreement's child visitation provisions (see Skidelsky v. Skidelsky, 279 A.D.2d 356, 719 N.Y.S.2d 88 [2001];  Lewin v. Frances, 270 A.D.2d 89, 704 N.Y.S.2d 468 [2000] ), or that the modification he proposes would be in the child's best interests at this time (see Steck v. Steck, 307 A.D.2d 819, 763 N.Y.S.2d 54 [2003] ).

Plaintiff is not entitled to recover a portion of the child's tutoring fees, which she unilaterally decided to incur, since the settlement agreement provides that educational decisions must be made jointly after consultation between both parties (see Matter of Aiken v. Aiken, 115 A.D.2d 919, 921, 496 N.Y.S.2d 816 [1985] ).   Furthermore, the record fails to establish that defendant willfully withheld payment for child-related expenses from plaintiff, and accordingly, plaintiff's request for attorney's fees was appropriately denied (compare Cion v. Cion, 253 A.D.2d 595, 596, 677 N.Y.S.2d 143 [1998] ).