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Catherine R. B. Goldberg v. Paul P. Baard
— In an action for specific performance of a modification agreement to a separation agreement, the defendant appeals from a judgment of the Supreme Court, Nassau County (Levitt, J.), entered June 30, 1986, which directed him, inter alia, to (1) comply with the modification agreement by paying all related costs of his two sons for college and graduate school; (2) pay the plaintiff a sum in reimbursement of moneys paid by her on behalf of the college expenses of their son Mark and (3) pay the plaintiff’s attorney counsel fees and disbursements and pay costs to the plaintiff.
Ordered that the judgment is affirmed, with costs. Pursuant to an agreement between the parties which modified their separation agreement, the defendant became obligated, inter alia, to pay all of the college expenses incurred by the parties’ sons. The defendant objected to paying for the college expenses being incurred by his son Mark because the defendant felt the costs were excessive. However, the agreement is silent as to a ceiling on college and graduate school costs and the court cannot impose one.
Although the defendant did not make a motion to be relieved of his financial obligation under the agreement (see, Hahn v Hahn, 40 AD2d 624), the trial court nevertheless examined the case on the merits as though the defendant had made such a motion. The trial court was correct in determining that the defendant did not meet his burden of showing financial hardship. The defendant also seeks to set aside the award of counsel fees. The modification agreement states that it is a part of the separation agreement.
The parties were divorced by a judgment from the Dominican Republic which ordered them to comply with the terms of the separation agreement. Therefore, this action is covered by the language of Domestic Relations Law § 238 which allows the court to award attor 567 ney’s fees in an action to compel a payment of money in an action for divorce (see, Fabrikant v Fabrikant, 19 NY2d 154). Thompson, J. P., Niehoff, Rubin and Sullivan, JJ., concur.