IN RE: Rollo FRENCH

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

IN RE: Rollo FRENCH, appellant, v. Anna FRENCH, respondent.

Decided: December 27, 2004

FRED T. SANTUCCI, J.P., THOMAS A. ADAMS, BARRY A. COZIER, and REINALDO E. RIVERA, JJ. Rollo T. French, Brooklyn, N.Y., appellant pro se. Anna French, Hollis, N.Y., respondent pro se.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Hamill, J.), dated December 17, 2003, which denied his objections to stated portions of an order of the same court (Shamahs, S.M.) dated November 3, 2003, which, inter alia, granted that branch of the mother's petition which was to require him to pay educational expenses for the child Ruth French.

ORDERED that the order dated December 17, 2003, is modified, on the law, by deleting the provision thereof denying the father's objections to so much of the order dated November 3, 2003, as granted that branch of the petition which was to require him to pay educational expenses for the child Ruth French and substituting therefor a provision sustaining those objections;  as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a hearing and a new determination in accordance herewith.

 In reviewing the mother's petition, the Support Magistrate concluded that the mother demonstrated a sufficient change of circumstances and directed the father to contribute to the college costs of the parties' daughter.   While a court may order a parent to contribute to the child's educational expenses (see Family Ct. Act § 413[1][c][7];  Domestic Relations Law § 240[1-b][c][7] ), a court does not have unfettered discretion in making such an award (see Saslow v. Saslow, 305 A.D.2d 487, 758 N.Y.S.2d 825).  “In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice” (Chan v. Chan, 267 A.D.2d 413, 414, 701 N.Y.S.2d 114, quoting Manno v. Manno, 196 A.D.2d 488, 491, 600 N.Y.S.2d 968;  see Matter of Wieser v. Wieser, 253 A.D.2d 467, 676 N.Y.S.2d 655;  York v. York, 247 A.D.2d 612, 669 N.Y.S.2d 362).

Here, the Support Magistrate applied the incorrect standard in directing the father to contribute to the college costs of the parties' daughter based only on the conclusion that there was a change of circumstances.   Accordingly, we remit the matter to the Family Court, Kings County, for a hearing and a new determination as to whether an award of college and educational expenses is appropriate (see Saslow v. Saslow, supra;  Mrowka v. Mrowka, 260 A.D.2d 613, 689 N.Y.S.2d 172).   We note that, if such an award is made, the father would be entitled to a credit against his child support obligation for the period of time that the child is away at school (see Saslow v. Saslow, supra;  Jablonski v. Jablonski, 275 A.D.2d 692, 713 N.Y.S.2d 184;  Sheridan v. Sperber, 269 A.D.2d 439, 702 N.Y.S.2d 894).

The father's remaining contentions are without merit.

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