Fighting Against the 'SUNY Cap'

For many years, much of New York's legal community has believed in the supposed strictures of the so-called “SUNY cap.” If the parents cannot agree and there is no provision for college expenses in their divorce settlement agreement, then no matter what school the child actually attends, the tuition charged by the State University of New York (SUNY) represents the maximum amount parents supposedly may be compelled to pay for their children's college education.

But while the SUNY cap has taken on the aura of a rule to many New York practitioners, a recent decision handed down by Manhattan Supreme Court Justice Matthew F. Cooper is highlighting the fact that although the SUNY cap has its place, it is not the last word. That case, Pamela T. v Marc B., 2011 NY Slip Op 21355, deserves a serious look.

Some Statutory and Case Law Background

Domestic Relations Law (DRL) ' 240 (1-b)(c)(7), enacted in 1989, permits New York courts to “direct a parent to contribute to a child's private college education, even in the absence of special circumstances or a voluntary agreement.” The statute goes on to state that, when a court exercises its discretion to order payment of college expenses, it should take into account the “circumstances of the case and the parties, the best interests of the child, and the requirements of justice.” But, as Judge Cooper put it in Pamela T. v Marc B., “One thing that DRL ' 240 (1-b)(c)(7), does not provide for is a SUNY cap. The SUNY cap is a concept that has been judicially created by way of a string of decisions rendered since the enactment of the statute.”

DRL ' 240 (1-b)(c)(7) has been interpreted by the courts to require an inquiry into several factors when deciding what amount of college tuition a parent should be asked to cover. Some of these are the financial capabilities of both parents, the child's academic abilities and the educational needs of the child. See Rosado v. Hughes, 23 AD3d 318 (1st Dept. 2005; Naylor v. Galster, 48 AD3d 951 (3d dept. 2008); Reiss v. Reiss, 56 AD3d 1293 (4th Dept. 2008).

The SUNY cap has been imposed in situations in which the parties agreed that one or both would pay their children's college tuition to attend a SUNY school. It has also been upheld as a valid limitation on tuition payment requirements when the parents agreed that they would come to a consensus on the college their child should attend, yet one party withheld consent. In such instances, the court has found it appropriate to impose a SUNY cap limiting the amount that the consent-withholding parent should be ordered to pay. See, e.g., Halligan v. Wesdorp, 264 AD2d 466 (2d Dept. 1999); Collins v. Collins, 222 AD2d 584 (2d Dept. 1995).

Background

The parties in Pamela T. v Marc B., both attorneys, have similar adjusted gross incomes, in the $105,000-$110,000 range. The mother has a net worth of approximately $1.2 million, while the father's net worth is about half that. The mother went to Northwestern University and New York University School of Law, and the father attended Columbia University and Benjamin N. Cardozo School of Law.

These parents made no provision for their two children's college tuition prior to their divorce in 2008, and they had made no subsequent agreements on the subject. Their eldest son, now 18 years old, had attended a selective public high school in New York City. While there, he was diagnosed with a “moderate emotional difficulty” and learning/anxiety disorders, entitling him to some educational accommodations, such as extra time for taking exams. He was a successful student, however, and was later accepted to both Syracuse University and State University of New York at Binghamton (SUNY Binghamton), among others. Tuition, room and board at Syracuse was estimated at $53,000 per year, while SUNY Binghamton charges approximately $18,000. Thus, the cost of attending the SUNY school is about one-third the cost of Syracuse University.

The young man decided that he wanted to attend Syracuse University, and he is currently doing so. After the father objected to paying the high costs associated with a Syracuse University education, the mother moved the court to order him to do so.

Although the father did not object to paying a reasonable share of his son's college tuition, fees and expenses, he contended that his son could get as good an education at a SUNY school as he could get at Syracuse University, and that he was financially unable to pay for the more expensive school. He therefore asked that the SUNY cap be applied so that he would be required to pay only a percentage of the amount a state school education would cost.

Other Cases

In support of his position, the father cited to Maurer v. Maurer, 57 AD3d 548 (2d Dept. 2008); to Reiss v. Reiss, 56 AD3d 642 (2d Dept. 2008); and to Sheridan v. Sperber, 269 AD2d 439 (2d Dept. 2000). The court found these cases inapposite, as in each of them the appeals courts had imposed the SUNY cap on parents who wanted to pay nothing at all toward their children's education, while the paying parents offered no objection to the SUNY cap. The mother here was objecting to the cap.

Another case cited by the father, Berliner v. Berliner, 33 AD3d 745 (2d Dept. 2006), was also inapplicable, said the court. It stood for the proposition that a SUNY cap should not apply when a child has been attending private boarding school, a presumably expensive option. However, the court was not convinced that because a SUNY cap was inapplicable where the child attended private secondary school it therefore followed that such a cap was appropriate where a child had not attended private secondary school.

The Court's Reasoning

Although rejecting the father's logic with regard to the Berliner holding, the court latched on to two statements in that case as evidence that a SUNY cap is not to be assumed by New York's courts. One was the Berliner court's declaration that there was “no basis in this record” for imposing the SUNY cap. That phrase, Judge Cooper said, implied that the Berliner court considered the burden of proof to be on the proponent of the cap to show that it was warranted. He went on to observe that the Berliner decision's “reference to the 'so-called SUNY cap' (emphasis added [in original]) can be seen as an indication that even the Second Department views the SUNY cap as something less than an established doctrine firmly ensconced in the fabric of family law. At most, it is a concept that comes into play under certain limited circumstances.”

Having determined that the SUNY cap is appropriate in some, but not all cases, the court next turned to what it considered the father's true aim in the case before it, which was to compel his son's mother to prove that Syracuse is a better school than SUNY Binghamton before he could be required to pay Syracuse's higher costs. The court declined to address the issue, noting that even well-known college-rating systems, like U.S. News and World Report's, are considered flawed and controversial. “One can only imagine weeks of testimony with regard to each school on such things as the SAT scores of the incoming freshman class, the credentials of each faculty member, the success rate of the school's alumni, the quality of campus facilities, the size of the classes and the amount of individual attention a student can expect to receive, and the overall level of satisfaction or dissatisfaction that the student body experiences,” observed the court. “And then in order to have persuasive witnesses with the requisite personal knowledge, there is the prospect of the parties calling the admissions director, dean, provost, department chairs, librarian, alumni director, and even students from the particular college that each side is championing as the finer bastion of academic excellence.”

Instead, in accordance with DRL ' 240 (1-b)(c)(7) and cases like Rosado v. Hughes, the proper inquiry must concern not statistical or universal rankings, but what is best for the child in question. This particular child had chosen Syracuse because it had strong academic programs in both of his chosen areas of study, among other good reasons. Furthermore, both parents had attended private universities so, according to the court, it could “reasonably be assumed that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.”

The court also deemed the parents to have enough money to send their son to Syracuse, overcoming the father's objections by noting that he was financially able to keep two homes and that his contribution to his sons' support was below the normal rate for a parent of his means. Because the father's income was slightly less than the mother's, and she had a pension plan and greater net worth, the court ordered the father to pay a lesser share of his son's college costs (40%) than the mother was asked to pay.

Conclusion

Toward the end of the Pamela T. v Marc B. opinion, and after heaping praise on the quality of education available in the SUNY system of colleges and universities, Justice Cooper stated, “[T]here is one thing the SUNY system should not be. Contrary to what proponents of a wide and liberal application of the SUNY cap might urge, the SUNY system should not be the assumed destination of the children of divorce.” In the court's opinion, the choices of the children of divorce should not be limited by their parents' decisions.

But even in intact families, children's college choices are often constrained by parental expectations and financial decisions. The father in Pamela T. v. Marc B. makes about $105,000 per year, he lives in an expensive area of the country and he has remarried. Judge Cooper's decision requires him to pay 20% of his yearly income for one child's college education. And this divorced couple's second child, who will reach college age in a year and a half, will presumably want as many college choices open to him as were open to his older brother.

If the parents in this case had instead agreed to agree in future ' as the parties did in Halligan v. Wesdrop and Collins v. Collins by providing in their separation agreements that they would later come to a consensus concerning their children's college education ' the question at the Pamela T. v. Marc B. hearing might have been whether the father had unreasonably withheld his consent to his son's college choice. As part of this inquiry, he would then, according to Judge Collins' interpretation of Balk, Halligan and Collins, have been entitled to insist that the cost of his contribution to his child's college education remain in line with tuition and costs at a SUNY school.

Attorneys and divorcing parties should be cognizant of this interpretation of New York law, as a seemingly innocuous promise in a separation agreement may come back to bite. If a divorcing party agrees to agree at some later date on educational decisions, is he or she also agreeing that the SUNY cap will apply? Care should be taken in crafting settlement agreements if that is not the intention.

Janice G. Inman is Editor-in-Chief of this newsletter.

For many years, much of New York's legal community has believed in the supposed strictures of the so-called “SUNY cap.” If the parents cannot agree and there is no provision for college expenses in their divorce settlement agreement, then no matter what school the child actually attends, the tuition charged by the State University of New York (SUNY) represents the maximum amount parents supposedly may be compelled to pay for their children's college education.

But while the SUNY cap has taken on the aura of a rule to many New York practitioners, a recent decision handed down by Manhattan Supreme Court Justice Matthew F. Cooper is highlighting the fact that although the SUNY cap has its place, it is not the last word. That case, Pamela T. v Marc B., 2011 NY Slip Op 21355, deserves a serious look.

Some Statutory and Case Law Background

Domestic Relations Law (DRL) ' 240 (1-b)(c)(7), enacted in 1989, permits New York courts to “direct a parent to contribute to a child's private college education, even in the absence of special circumstances or a voluntary agreement.” The statute goes on to state that, when a court exercises its discretion to order payment of college expenses, it should take into account the “circumstances of the case and the parties, the best interests of the child, and the requirements of justice.” But, as Judge Cooper put it in Pamela T. v Marc B., “One thing that DRL ' 240 (1-b)(c)(7), does not provide for is a SUNY cap. The SUNY cap is a concept that has been judicially created by way of a string of decisions rendered since the enactment of the statute.”

DRL ' 240 (1-b)(c)(7) has been interpreted by the courts to require an inquiry into several factors when deciding what amount of college tuition a parent should be asked to cover. Some of these are the financial capabilities of both parents, the child's academic abilities and the educational needs of the child. See Rosado v. Hughes , 23 AD3d 318 (1st Dept. 2005; Naylor v. Galster , 48 AD3d 951 (3d dept. 2008); Reiss v. Reiss , 56 AD3d 1293 (4th Dept. 2008).

The SUNY cap has been imposed in situations in which the parties agreed that one or both would pay their children's college tuition to attend a SUNY school. It has also been upheld as a valid limitation on tuition payment requirements when the parents agreed that they would come to a consensus on the college their child should attend, yet one party withheld consent. In such instances, the court has found it appropriate to impose a SUNY cap limiting the amount that the consent-withholding parent should be ordered to pay. See, e.g., Halligan v. Wesdorp , 264 AD2d 466 (2d Dept. 1999); Collins v. Collins , 222 AD2d 584 (2d Dept. 1995).

Background

The parties in Pamela T. v Marc B., both attorneys, have similar adjusted gross incomes, in the $105,000-$110,000 range. The mother has a net worth of approximately $1.2 million, while the father's net worth is about half that. The mother went to Northwestern University and New York University School of Law, and the father attended Columbia University and Benjamin N. Cardozo School of Law.

These parents made no provision for their two children's college tuition prior to their divorce in 2008, and they had made no subsequent agreements on the subject. Their eldest son, now 18 years old, had attended a selective public high school in New York City. While there, he was diagnosed with a “moderate emotional difficulty” and learning/anxiety disorders, entitling him to some educational accommodations, such as extra time for taking exams. He was a successful student, however, and was later accepted to both Syracuse University and State University of New York at Binghamton (SUNY Binghamton), among others. Tuition, room and board at Syracuse was estimated at $53,000 per year, while SUNY Binghamton charges approximately $18,000. Thus, the cost of attending the SUNY school is about one-third the cost of Syracuse University.

The young man decided that he wanted to attend Syracuse University, and he is currently doing so. After the father objected to paying the high costs associated with a Syracuse University education, the mother moved the court to order him to do so.

Although the father did not object to paying a reasonable share of his son's college tuition, fees and expenses, he contended that his son could get as good an education at a SUNY school as he could get at Syracuse University, and that he was financially unable to pay for the more expensive school. He therefore asked that the SUNY cap be applied so that he would be required to pay only a percentage of the amount a state school education would cost.

Other Cases

In support of his position, the father cited to Maurer v. Maurer , 57 AD3d 548 (2d Dept. 2008); to Reiss v. Reiss , 56 AD3d 642 (2d Dept. 2008); and to Sheridan v. Sperber , 269 AD2d 439 (2d Dept. 2000). The court found these cases inapposite, as in each of them the appeals courts had imposed the SUNY cap on parents who wanted to pay nothing at all toward their children's education, while the paying parents offered no objection to the SUNY cap. The mother here was objecting to the cap.

Another case cited by the father, Berliner v. Berliner , 33 AD3d 745 (2d Dept. 2006), was also inapplicable, said the court. It stood for the proposition that a SUNY cap should not apply when a child has been attending private boarding school, a presumably expensive option. However, the court was not convinced that because a SUNY cap was inapplicable where the child attended private secondary school it therefore followed that such a cap was appropriate where a child had not attended private secondary school.

The Court's Reasoning

Although rejecting the father's logic with regard to the Berliner holding, the court latched on to two statements in that case as evidence that a SUNY cap is not to be assumed by New York's courts. One was the Berliner court's declaration that there was “no basis in this record” for imposing the SUNY cap. That phrase, Judge Cooper said, implied that the Berliner court considered the burden of proof to be on the proponent of the cap to show that it was warranted. He went on to observe that the Berliner decision's “reference to the 'so-called SUNY cap' (emphasis added [in original]) can be seen as an indication that even the Second Department views the SUNY cap as something less than an established doctrine firmly ensconced in the fabric of family law. At most, it is a concept that comes into play under certain limited circumstances.”

Having determined that the SUNY cap is appropriate in some, but not all cases, the court next turned to what it considered the father's true aim in the case before it, which was to compel his son's mother to prove that Syracuse is a better school than SUNY Binghamton before he could be required to pay Syracuse's higher costs. The court declined to address the issue, noting that even well-known college-rating systems, like U.S. News and World Report's, are considered flawed and controversial. “One can only imagine weeks of testimony with regard to each school on such things as the SAT scores of the incoming freshman class, the credentials of each faculty member, the success rate of the school's alumni, the quality of campus facilities, the size of the classes and the amount of individual attention a student can expect to receive, and the overall level of satisfaction or dissatisfaction that the student body experiences,” observed the court. “And then in order to have persuasive witnesses with the requisite personal knowledge, there is the prospect of the parties calling the admissions director, dean, provost, department chairs, librarian, alumni director, and even students from the particular college that each side is championing as the finer bastion of academic excellence.”

Instead, in accordance with DRL ' 240 (1-b)(c)(7) and cases like Rosado v. Hughes, the proper inquiry must concern not statistical or universal rankings, but what is best for the child in question. This particular child had chosen Syracuse because it had strong academic programs in both of his chosen areas of study, among other good reasons. Furthermore, both parents had attended private universities so, according to the court, it could “reasonably be assumed that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.”

The court also deemed the parents to have enough money to send their son to Syracuse, overcoming the father's objections by noting that he was financially able to keep two homes and that his contribution to his sons' support was below the normal rate for a parent of his means. Because the father's income was slightly less than the mother's, and she had a pension plan and greater net worth, the court ordered the father to pay a lesser share of his son's college costs (40%) than the mother was asked to pay.

Conclusion

Toward the end of the Pamela T. v Marc B. opinion, and after heaping praise on the quality of education available in the SUNY system of colleges and universities, Justice Cooper stated, “[T]here is one thing the SUNY system should not be. Contrary to what proponents of a wide and liberal application of the SUNY cap might urge, the SUNY system should not be the assumed destination of the children of divorce.” In the court's opinion, the choices of the children of divorce should not be limited by their parents' decisions.

But even in intact families, children's college choices are often constrained by parental expectations and financial decisions. The father in Pamela T. v. Marc B. makes about $105,000 per year, he lives in an expensive area of the country and he has remarried. Judge Cooper's decision requires him to pay 20% of his yearly income for one child's college education. And this divorced couple's second child, who will reach college age in a year and a half, will presumably want as many college choices open to him as were open to his older brother.

If the parents in this case had instead agreed to agree in future ' as the parties did in Halligan v. Wesdrop and Collins v. Collins by providing in their separation agreements that they would later come to a consensus concerning their children's college education ' the question at the Pamela T. v. Marc B. hearing might have been whether the father had unreasonably withheld his consent to his son's college choice. As part of this inquiry, he would then, according to Judge Collins' interpretation of Balk, Halligan and Collins, have been entitled to insist that the cost of his contribution to his child's college education remain in line with tuition and costs at a SUNY school.

Attorneys and divorcing parties should be cognizant of this interpretation of New York law, as a seemingly innocuous promise in a separation agreement may come back to bite. If a divorcing party agrees to agree at some later date on educational decisions, is he or she also agreeing that the SUNY cap will apply? Care should be taken in crafting settlement agreements if that is not the intention.

Janice G. Inman is Editor-in-Chief of this newsletter.