Kotkin v. Kerner

Capozzoli, J. The record indicates that the son of the parties was in his junior year at a private high school at the time of the hearing in the Family Court. He is now almost 18 years of age and in his senior year at that school. He received honors during his junior year by being admitted to the “ physics — science ” class. Out of a class of 124 students he was selected as one of 20 whose mathematics grades were high enough to warrant placing him in this special class. He has already taken his college entrance examinations. The young man has attended private schools since he was three years old. The part of the order appealed from would require appellant to pay 50% of his son’s current tuition “ but not to exceed $900 per year ”. By its terms the order is to remain effective so long as the young man continues at the Fieldston School. The dissenting opinion argues that there is no power in the Family Court to make the direction appealed from and, further, that, in any event, it was an improvident exercise of discretion to do so. As to whether the court has the power, it seems that the answer is provided by section 416 of the Family Court Act which, amongst other things, makes provision for the court to include in a support order “ the expense of educating a minor”. There is no quarrel with the rule that, generally speaking, the kind and extent of a child’s education is largely [369] left to a father’s selection. However, this is not the same as saying that under no circumstances can a Family Court ever make its own direction in the matter of education, lacking the father’s approval. Certain conditions may be present when a Family Court, in the proper exercise of the power given to it under section 416, would be justified in doing so. The case of Matter of Matthews v. Matthews (14 A D 2d 546) sets forth the rule which we deem applicable to this case. The court held therein that, whether a private out-of-town college education was necessary for the child of the parties ‘‘ in the light of respondent’s [father’s] pecuniary ability, and whether her [mother’s] present support allowance is sufficient to sustain the cost of such education, constitute questions of fact for the Children’s Court [here the Family Court] to resolve in the first instance [citing cases].” If the dissent is correct in its contention, then the court in the Matthews case (supra), performed an act of futility in remanding that case to the Children’s Court for a rehearing. Each case must be considered on its own particular facts in determining whether or not the Family Court would be justified in interfering. As was stated in Matter of Weingast v. Weingast (44 Misc 2d 952, 953): “ there is no set rule ”. We agree that, ordinarily, a father is not under a duty to provide a private school education for his child. But this does not mean that the Family Court lacks the authority to make an order directing a father to contribute to such an education if the circumstances warrant it. In the case at bar there can be no doubt that the Family Court was concerned about the well-being and future of this young man. To remove this student from a private high school, from which he was to be graduated in the following year, after having attended private schools for more than 13 years, was found by the Family Court to be contrary to the young man’s best interests. Therefore, in the proper exercise of its discretion, it entered the order appealed from. We are mindful of Wagner v. Wagner (51 Misc 2d, 574, affd, 28 A D 2d 828, opp. dsmd. 20 N Y 2d 803) on which strong reliance is placed by the dissent. But that case does not warrant a conclusion different than that reached here. We do not read that case as authority for a holding that a Family Court is powerless to enter an order of the type involved herein and under the circumstances presented. Accordingly, the order of the Family Court, dated December 16, 1966, directing appellant to pay 50% of his son’s current tuition at the Fieldston School, not to exceed $900 per year, should be affirmed, without costs and without disbursements.