KOZMINSKI v. KOZMINSKI

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Supreme Court, Appellate Division, Fourth Department, New York.

Michele KOZMINSKI, Now Known as Michele Kibling, Plaintiff–Respondent, v. George A. KOZMINSKI, Defendant–Appellant.

1227

Decided: February 01, 2019

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND NEMOYER, JJ. LEVITT & GORDON, ESQS., NEW HARTFORD (DEAN L. GORDON OF COUNSEL), FOR DEFENDANT–APPELLANT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: The parties were divorced in 2011.  Plaintiff wife thereafter moved for, inter alia, an order interpreting the parties' divorce settlement agreement with respect to their respective responsibilities for their eldest daughter's educational expenses.  After a hearing, Supreme Court determined that the agreement obligated defendant husband to pay all of the eldest daughter's undergraduate and graduate expenses, except for certain loans that plaintiff took out in her own name.  Consequently, the court ordered defendant to pay the eldest daughter's outstanding undergraduate debt, which amounted to $ 57,418.96.  Defendant appeals, and we now affirm.

The disputed portion of the agreement provides that defendant “will pay 100% of the ․ tuition, room, board and books for both children until they complete the degree they are currently in and so long as they are in a full time program or until such time as they reach the age of [25] years, which ever comes first.”  At the time of the agreement's execution, the eldest daughter had completed her undergraduate degree and was enrolled in a graduate program.  We reject defendant's contention that the agreement's language obligated him to pay only for the eldest daughter's graduate program, not her outstanding undergraduate debt.  As the court properly concluded, the plain language of the agreement reflects defendant's undertaking to pay for all—i.e., “100%”—of his children's educational expenses through and including—i.e., “until”—the completion of the program in which they were “currently” enrolled.  Such expenses necessarily include the undergraduate debt incurred by the eldest daughter (see Matter of Yorke v. Yorke, 83 A.D.3d 951, 952, 922 N.Y.S.2d 115 [2d Dept. 2011]; Matter of Kent v. Kent, 29 A.D.3d 123, 134, 810 N.Y.S.2d 160 [1st Dept. 2006] ).

Contrary to defendant's contention, the court's interpretation of the agreement does not render superfluous the “complete the degree they are currently enrolled in” language.  Such language sets an outer limit on defendant's obligation to pay for educational expenses, i.e., defendant need not pay for any educational expenses incurred after the completion of the respective child's current degree program.  This language does not, however, limit defendant's obligation to pay for any educational expenses incurred by the children before the completion of their current degree program.  Nor, contrary to defendant's further contention, is the court's interpretation of the disputed provision in any way inconsistent with a separate provision of the settlement agreement by which plaintiff is responsible for any post-divorce loans taken out in her own name.  Indeed, the court did not order defendant to pay for or reimburse plaintiff for any post-divorce loans taken out in her own name in contravention of the separate provision of the agreement.

Finally, while it is an “established principle of contract law that any ambiguity or dual meaning attributable to the words of a contract should be interpreted most strictly against the drafter” (Dimino v. Dimino, 91 A.D.2d 1185, 1185, 459 N.Y.S.2d 164 [4th Dept. 1983], appeal dismissed 59 N.Y.2d 968, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [1983] ), here, plaintiff's attorney testified without contradiction that the disputed language “came from” defendant.  Thus, inasmuch as defendant had a “voice in the selection of [the contractual] language” (67 Wall St. Co. v. Franklin Natl. Bank, 37 N.Y.2d 245, 249, 371 N.Y.S.2d 915, 333 N.E.2d 184 [1975] ), there is no basis to construe any ambiguity in that language against plaintiff (see Science Applications Intl. Corp. v. State of New York, 60 A.D.3d 1257, 1259, 876 N.Y.S.2d 182 [3d Dept. 2009]; Citibank, N.A. v. 666 Fifth Ave. Ltd. Partnership, 2 A.D.3d 331, 331, 769 N.Y.S.2d 268 [1st Dept. 2003] ).