ALBANY – A divorced father must contribute 71 percent of his son’s private school tuition despite an earlier agreement with his ex-wife that she would pay full tuition, a state judge has determined.

There is a “sound and substantial basis” for requiring the father to pay the lion’s share of the tuition under Family Court Act §413(1)(c)(7), which requires a non-custodial parent to pay education expenses if “private, special or enriched” schooling would be in the best interests of the child as determined by the court, Family Court Judge W. Dennis Duggan in Albany County (See Profile) decided.

Duggan ruled in Kristina Lynn B. v. Joseph T.M., F-7119-11/12B, that by consenting to have his son attend Christian Brothers Academy in Albany, the father acknowledged that the school “was the best educational setting for his son” and, by extension, in the best interests of the boy.

The judge called the agreement that the mother would bear the $5,600-a-year tuition costs to the Roman Catholic-affiliated school “not relevant” to the father’s later objections to a support magistrate’s findings directing him to pay 71 percent of the schooling costs.

“The reason that is so is because Family Court has no authority to enforce contracts,” Duggan wrote, citing Boden v. Boden, 42 NY2d 210 (1977), and Brescia v. Fitts, 56 NY2d 132 (1982).

To find otherwise would subject the court to contract enforcement concerns that may be contrary to the mission of the Family Court itself, Duggan said.

He hypothesized that, for instance, the court could be asked to set aside the parents’ agreement after the first year because there was no agreement in writing as required by the statute of frauds, General Obligations Law §5-701. Or the mother “could have argued that the father’s acquiescence to the child’s enrollment in the seventh grade at the private school might be deemed a renewal of the agreement for which the father is stopped from registering an objection,” the judge speculated.

“Because Family Court is a court of limited jurisdiction, it has no authority to rule on such issues,” Duggan concluded. “Its jurisdiction is limited, in this case, to applying FCA §413(1)(c)(7) to the evidence. The interpretation of an oral contract between the parties or imposing equitable relief is beyond the Court’s authority.”

Duggan also declined an invitation by the father to exercise the potential discretion the judge is given under §413(1)(c)(7) to make a determination “as justice requires” that would allow the court to “take into account that the mother reneged on her agreement to pay for the total cost of tuition.”

“The Court does not read that phrase as a green light by the Legislature for the Family Court to assume subject matter jurisdiction not specifically given to the Court by positive law,” Duggan wrote. “Even if it could be read this way, the father’s consenting to allow his child to be enrolled in the selected school for two academic years would be a convincing counterweight to the argument suggested.”

The couple had two sons and divorced in 2007. The mother, the custodial parent, decided in 2011 to enroll the older boy, then 12, at Christian Brothers Academy because of the academic difficulties and “bullying issues” he was experiencing in public school.

Duggan’s ruling noted that, according to the support magistrate’s findings, the boy has been “thriving and his emotional state has improved” at the academy and he has needed less of the medication that was prescribed for him in 2009 for an “auditory processing disorder.”

The husband objected to the mother’s attempt to have him pay a share of the tuition, arguing that she had agreed to pay the school expenses and that the school she chose is one of the most expensive in the Albany region.

In backing the support magistrate’s findings, Duggan said the father would have a “valid” point if he could show that the costs at Christian Brothers Academy were disproportionate to the benefits his son was receiving at the school.

But the judge said the boy had shown significant improvement, and, in addition, the father’s claim that the academy was among the capital’s region most expensive private schools was false. Duggan said a survey by a local business publication in October 2012 showed that annual tuition at private schools in the Albany area ranged from $4,500 to $29,000.

Full tuition at Christian Brothers Academy is $8,600 a year, but the mother obtained financial aid of $3,000 a year, according to Duggan’s ruling.

The support magistrate set the father’s contribution of tuition costs at 71 percent because that was the same proportionate formula that governs reimbursement for uninsured health costs and day care under FCA §413(1)(c)(5)(v).

Michael Friedman of Friedman and Molinsek in Delmar represented the mother. He said courts in the Appellate Division, Third Department, have been consistent in requiring contributions to education by both parents in a divorce where private schools are deemed to be in the best interests of the children or for college expenses.

But Friedman said where the courts have differed is how the schooling expenses are to be allocated. “There are different ways of looking at the statute because the statute is not specific,” Friedman said. “The beauty is in the eye of the judge, in this case. When a client comes in to see me, it is very difficult to advise them about what a court is going to do.”

Stephen Waite of Waite and Associates in Albany argued for the father.