GUEVARA v. GUEVARA (1999)

Order and judgment (one paper), Supreme Court, New York County (Jacqueline Silbermann, J.), entered April 22, 1998, which granted plaintiff judgment against defendant for the sum of $78,377.49, representing defendant's obligation for past educational and camp expenditures for the parties' daughter, and ordered defendant to pay half of the future college expenses for the parties' daughter, regardless of whether plaintiff obtains the consent of defendant as to the college attended, unanimously affirmed, without costs.

 The parties' separation agreement, which was incorporated but not merged into their May 7, 1984 divorce decree, gave them joint custody of their daughter and provided that “on all matters of importance relating to the child's health, education, welfare and religion, it shall be mutually agreed upon by both Husband and Wife”. Within the context of these proceedings, however, that provision cannot be viewed as having any more force than an agreement to agree, particularly since paragraphs 6 and 7 of the same agreement specifically and unconditionally obligate defendant to pay half of the “private school” expenses, through college, and half of the summer camp expenses for the child.   The obligations imposed by these specific provisions are not made to depend upon either party's consent to the particular educational arrangements made, and, plainly, defendant's request for consideration of public school alternatives was not bargained for or within the contemplation of the parties at the time the agreement was executed.   Moreover, the Special Referee's finding of defendant's acquiescence in the elementary and high school choices made by plaintiff and lack of unequivocal disapproval of the decision as to where his daughter would attend college is supported by record and provides a further basis to uphold the determination in this case (see, Matter of Hartle v. Cobane, 228 A.D.2d 756, 643 N.Y.S.2d 726;  Kappus v. Kappus, 208 A.D.2d 538, 616 N.Y.S.2d 790).

MEMORANDUM DECISION.