Maclay v. Maclay 99 A.D.2d 629

Appeal from an order of the Supreme Court at Special Term (Ford, J.), entered June 29, 1983 in Schenectady County, which found that plaintiff was contractually liable to pay for the college expenses of his daughter to the extent that he was reasonably able to pay. The separation agreement entered into by the parties herein provides, inter alia, that: “18. education of the child: The child has a fund which will be available for her education in case of necessity both before and after the husband’s death. It is the intention of the husband, however, to take care of the child’s college education to the extent of his reasonable ability to do so. The husband agrees that the question regarding his reasonable ability to do so may be submitted to the appropriate Family Court on the application of either party.” In 1975, a degree of divorce was entered which incorporated, but did not merge, the above-referenced separation agreement. By order to show cause signed on April 20,1983, defendant wife applied for an order requiring plaintiff husband to pay for the college expenses of their daughter. After plaintiff submitted responding affidavits, Special Term found that, to the extent that plaintiff was reasonably able to pay, he was liable to pay for such expenses. Special Term also directed that a hearing be conducted to determine the reasonable ability of plaintiff to satisfy his daughter’s college education expenses. We are unable to find error in this determination. The order should, therefore be, affirmed. Order affirmed, without costs. Kane, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.