Cassano v. Cassano

Miller, J.,

concurs in part and dissents in part and votes to affirm the order insofar as appealed from, with the following memorandum: I concur with my colleagues, except insofar as they find that the Family Court improvidently exercised its discretion in requiring the father to pay $2,269.78 per year for his son’s private parochial school education. In my view, that direction is amply supported by the record, is consistent with the circumstances of this case, those of the parties, is in the child’s best interest, and is in the interest of justice (see, Domestic Relations Law § 240 [1-b] [c] [7]; Manno v Manno, 196 AD2d 488).

Educational expenses are now a component of a parent’s basic child support obligation (see, Family Ct Act § 413 [1] [c] [7]) and, in determining that basic support, the court must *567consider the standard of living the child might have enjoyed had the marriage not failed (see, Family Ct Act § 413 [1] [f] [3]).

The parties in this case sent their older daughter to a Roman Catholic school from the fifth through eighth grades, and then to Catholic High School through the eleventh grade, when she left for personal reasons. Clearly, this indicates a preference by the parents to provide a parochial school education for their children. It is reasonable to assume that but for the divorce, the parties would have also sent their son to a parochial school.

Furthermore, this preference for private religious school education reflects not only the parents’ regard for the more individualized attention commonly offered by private schools, but also this family’s emphasis on religious values as an important component of their family life and value structure. This Court has indicated its respect for such preferences and found them persuasive in other cases where a parents’ obligation to pay for private parochial school education has been an issue. As this Court held in Keehn v Keehn (137 AD2d 493, 497-498), "In light of the family’s emphasis on religious training and the fact that the defendant has provided private religious education for his children in the past, we find it was proper to direct the defendant to continue to pay for such education until each child graduates from high school” (accord, Valente v Valente, 114 AD2d 951).

I find no distinction in the circumstances herein warranting a different conclusion.

Furthermore, at the time of the hearing, the son was already enrolled as a freshman in the parochial school. It is therefore reasonable to assume that he has remained at that school and that it would be in his best interest not to have his school and social life interrupted at this juncture (see, Valente v Valente, supra).

Clearly, the parties, with a combined parental income of $99,944, possess the financial wherewithal to pay for their son’s private education. The cost of tuition at the son’s private school, where he was enrolled as a freshman at the time of the hearing, was $3,175 per year plus uniforms and books (combined cost of $369) for a total of $3,524.50 per year. Of this total, the father would pay $2,269.78 (or 64.4%) while the mother would pay $1,254.72.

I agree with my colleagues that the Family Court’s discretion in regard to requiring parental payment of educational *568expenses, though broadened, is not entirely "unfettered”, and that it would have been preferable for the Hearing Examiner to articulate all of the factors supporting her determination. However, in this case, it is clear to me that the Family Court’s adoption of the Hearing Examiner’s recommendations, made after a two-day hearing, was not an improvident exercise of discretion, since the facts and circumstances in the record clearly support that determination.