IN RE: DANA F. (2024)

Order, Family Court, New York County (Hasa A. Kingo, J.), entered on or about March 2, 2023, which denied respondent father's objection to an order, same court (Amanda Norejko, Support Magistrate), entered on or about November 6, 2022, which, after a hearing on the mother's modification petition, ordered the father to contribute $4,000 per semester toward college tuition for the parties’ older child, and pay $12,000 to cover the tuition for the 2021 through 2022 academic year and fall 2022 semester, unanimously modified, on the law and in the exercise of our discretion, to the extent of reducing the payment of the tuition arrears to $10,000 from $12,000, and otherwise affirmed, without costs.

Based on the limited record before us, it was not an improvident exercise of discretion for the Support Magistrate to direct the father to pay roughly 62% of the child's tuition expenses, net of scholarships, grants, and student loans (see Domestic Relations Law § 240[1–b][c][7];  Family Court Act § 413[1][c][7];  Matter of Messiana v. Pena, 195 A.D.3d 849, 849–850, 145 N.Y.S.3d 825 [2d Dept. 2021]).  The Support Magistrate's finding of the father's proper pro rata share was based on the father's demonstrated ability to pay in light of his payment for his own education in the amount of $8,000.  The father does not seriously dispute that he has the ability to pay his pro rata share, and the record as a whole, while not entirely developed on this point, does support the conclusion that he is able to pay.

However, under the circumstances of this case, given the limited record on appeal, we modify the tuition award for the fall 2021 semester to $2,000 rather than $4,000 as a matter of discretion.  The mother filed her petition for modification when the child was halfway through her first semester at university, and it is clear from the record that the mother was making tuition payments in accordance with a payment plan.  Thus, the court's award of so much of the retroactive tuition as was paid before the date of the modification petition was improper (see Kent v. Kent, 29 A.D.3d 123, 133, 810 N.Y.S.2d 160 [1st Dept. 2006];  Matter of Naylor v. Galster, 48 A.D.3d 951, 953, 851 N.Y.S.2d 683 [3d Dept. 2008];  see generally Family Ct Act § 449[2]).

We have considered the father's remaining arguments and find them unavailing.