Zimmerman v. Zimmerman

Kupferman, J. (concurring).

I would affirm. Justice Sandler’s concurring memorandum and the dissent fairly set forth the facts, although certain aspects should be emphasized. The defendant paid plaintiff’s tuition for the first year at college and terminated payment only because of his conclusion that he could not afford to continue to pay. In fact, as the dissent indicates, he had told the bursar’s office at Adelphi University that, as to his daughter’s unpaid tuition, he did not have the money to pay at the time but would try to pay in the future. The amount awarded by the jury covers the unpaid tuition for the second and third years of the plaintiff’s college education. Although she sued for future tuition and damages, etc., and cross-appeals, we affirm here only with respect to those two years of unpaid tuition for which she received her education. In the view we take of this matter, the interesting analysis in the dissent of the Statute of Frauds and the doctrine of promissory estoppel becomes irrelevant. The father indicated his acceptance of attendance of the daughter at college. This could be considered part of his duty of maintenance and support. The oral arrangement which the plaintiff daughter claims was made with her father, merely substantiates his recognition of his obligation to include college attendance as part of support. (See Matter of Roe v Doe, 29 NY2d 188.) The current tuition for which the daughter became obligated to Adelphi University was, therefore, the obligation of the father. (Matter of Kotkin v Kerner, 29 AD2d 367; cf. Connolly v Connolly, 83 AD2d 136.) Under the circumstances, the judgment, as limited to the arrears in tuition for the two college years, should be affirmed, without costs.