BOGANNAM v. BOGANNAM (2009)

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Pines, J.), entered July 28, 2006, as, upon a decision of the same court dated March 3, 2006, made after a nonjury trial, awarded the defendant durational maintenance in the sum of $3,000 per month for 10 years, directed him to pay the college expenses of the parties' younger child, directed him to pay child support, specified the terms by which child support would be reduced upon emancipation of each child, awarded the defendant an attorney's fee in the sum of $40,000, and directed the parties to share equally the payment of the remaining expert fees.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof directing the plaintiff to pay the college expenses of the parties' younger child;  as so modified, the judgment is affirmed insofar as appealed from, with costs to the defendant.

Contrary to the plaintiff's contentions, the Supreme Court providently exercised its discretion in imputing income to him in the sum of $200,000 per year for the purpose of calculating his child support and maintenance obligations (see Domestic Relations Law § 240[1-b][b][5][iv];  Curran v. Curran, 2 A.D.3d 391, 767 N.Y.S.2d 852;  Ivani v. Ivani, 303 A.D.2d 639, 757 N.Y.S.2d 89;  Rocanello v. Rocanello, 254 A.D.2d 269, 678 N.Y.S.2d 385).

 The Supreme Court also providently exercised its discretion in awarding the defendant durational maintenance in the sum of $3,000 per month for 10 years (see Domestic Relations Law § 236[B][6][a];  Mazzone v. Mazzone, 290 A.D.2d 495, 736 N.Y.S.2d 683).   This award allows her an opportunity to become self-supporting, after almost 20 years of marriage in which she was the stay-at-home parent (see O'Brien v. O'Brien, 66 N.Y.2d 576, 585, 498 N.Y.S.2d 743, 489 N.E.2d 712;  Sperling v. Sperling, 165 A.D.2d 338, 567 N.Y.S.2d 538).

 The plaintiff correctly contends that the Supreme Court erred in directing him to pay college expenses for the parties' younger child, who was only seven years old at the time of the entry of judgment.   The court may direct a parent to contribute to a child's college education pursuant to Domestic Relations Law § 240(1-b)(c)(7).   However, when college is several years away, and no evidence is presented as to the child's academic interests, ability, possible choice of college, or what his or her expenses might be, a directive compelling the plaintiff to pay for those expenses is premature and not supported by the evidence (see LaBombardi v. LaBombardi, 220 A.D.2d 642, 632 N.Y.S.2d 829;  Whittaker v. Feldman, 113 A.D.2d 809, 493 N.Y.S.2d 375).

 The Supreme Court properly provided for a method of reducing the plaintiff's child support obligation, in accordance with the required statutory percentages, upon the older child attaining 21 years of age or emancipation, whichever is earlier, since more than one child is the subject of the order (see Domestic Relations Law § 240[1-b][c];  Levy v. Levy, 39 A.D.3d 487, 835 N.Y.S.2d 228;  Lee v. Lee, 18 A.D.3d 508, 795 N.Y.S.2d 283;  Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97, 105, 602 N.Y.S.2d 623).

 Considering the parties' relative financial positions, the Supreme Court providently exercised its discretion in awarding the defendant an attorney's fee in the sum of $40,000, and directing the parties to share equally the payment of the remaining expert fees (see Domestic Relations Law § 237[a];  O'Brien v. O'Brien, 66 N.Y.2d at 590, 498 N.Y.S.2d 743, 489 N.E.2d 712;  Griggs v. Griggs, 44 A.D.3d 710, 844 N.Y.S.2d 351;  Tayar v. Tayar, 250 A.D.2d 757, 673 N.Y.S.2d 179).   Furthermore, the plaintiff waived his right to a hearing to determine the amount of the attorney's fee, since he never requested a hearing, the parties' finances were explored at trial, and they agreed that the issue would be determined upon the submission of papers (see Schwartz v. Schwartz, 54 A.D.3d 400, 864 N.Y.S.2d 35;   Messinger v. Messinger, 24 A.D.3d 631, 809 N.Y.S.2d 83;  Mancuso v. Mancuso, 178 A.D.2d 584, 578 N.Y.S.2d 838).

The plaintiff's remaining contentions are without merit.