Respondent having timely filed objections on May 22, 2019 (“Objections”) to the May 10, 20191 Order of Disposition (M. Lafler, S.M.), and Petitioner having filed no rebuttal thereto2, and the Objections having been accompanied by a proper proof of service, the matter is before this Court for decision. Petitioner sought to enforce add on payment obligations of the Respondent. After taking into account all the expenses, the proration of those expenses and the credits to which the Respondent was entitled, the Support Magistrate found that the Respondent owed a net of $274.60. Respondent makes four objections: 1. The garnishment of Respondent’s wages has risen while child care expenses have decreased; 2. Respondent does not owe for extra-curricular activities (here, horseback riding) to which he did not consent; 3. Untimely billing and unfair surprise are occurring; and 4. Handwritten child care receipts are not acceptable. Each of the four objections is discussed in the following four sections of this Decision. 1 Respondent’s first objection is that “Weekly garnishment has increased when in fact child care expenses have decreased.” Challenges to the amounts of garnishment are prayers for affirmative relief by the Respondent. This case involves only the Petitioner’s claim that unpaid child support obligations (including add on expenses) exist. Thus, because objections are tantamount to appellate review, this issue is not properly before this court ((Matter of Musarra v. Musarra, 28 AD3d 668, 814 NYS2d 657 [2d Dept 2006]). Concerns about how the Support Collection Unit, an administrative agency, decides to enforce and collect funds (as opposed to disputes over the amount actually owed) are beyond the jurisdiction of the Support Magistrate, and Respondent may choose to pursue any such concern before a court of competent jurisdiction or directly with the Support Collection Unit, with this Court expressing no opinion on the merits of any such concern. Thus, because the issue is not properly before this Court, the Objections in respect of improper garnishment are DENIED in their entirety. 2 Respondent’s second objection is that Respondent did not consent to the activities in which Petitioner enrolled the children, and, therefore, should not be held liable for a potentially unlimited financial exposure for these extra-curricular activities. Petitioner’s Exhibit 4 shows that Petitioner incurred $650.00 of expense for horseback riding lessons for one of the parties’ children. There is no dispute that the controlling child support order is the October 30, 2017 order of the Suffolk County Family Court under docket F-12912-17/19A which adopted the parties November 18, 2016 judgment of divorce (Nassau County Supreme Court index number 200767/14, Hon. Stacy D. Bennett, AJSC), a certified copy of which is in the Court’s paper file. Attached to the judgment of divorce is a copy of the parties agreement dated April 12, 2016; in fact, the judgment of divorce sets forth, “ORDERED AND ADJUDGED that the Agreement dated April 12, 2016, the original of which is attached hereto and incorporated herein by reference, shall survive and not be merged into this Judgment” (Judgment of Divorce at 7). Therefore, the Suffolk County Family Court order of support dated October 30, 2017 continues the parties’ judgment of divorce and the parties’ April 12, 2016 agreement. The judgment of divorce is silent about payment of pro-rata shares of extracurricular expenses although it addresses a 57 percent (Respondent) and 43 percent (Petitioner) proration of necessary child care expenses and medical expenses and an equal share of payment for summer camp, all “pursuant to the parties’ Agreement dated April 12, 2016″ (Judgment of Divorce at 7). Petitioner’s Exhibit 4 refers to the April 12, 2016 agreement, specifically to the child support provisions on page 21, paragraph 3 and the general rules on page 13, paragraph 3.3 Page 21, paragraph 3 provides: There are no calculations of the child care expenses, health care expenses and education expenses for which the amounts to be paid by either party are subject to the Court’s discretionary determination. Rather, in addition to the basic child support obligation set forth in paragraph 1 of this Article X, the parties have agreed to pay their share of expenses on behalf of the children for college, unreimbursed health care expenses, summer camp, extracurricular activities, and other expenses as more particularly described in this Article. The Court notes that Petitioner’s Exhibit 4 calls this “paragraph 3,” but the paragraph is unnumbered and immediately preceded numbered paragraph 11 of Article X of the April 12, 2016 agreement. The “general rules” on page 13, paragraph 3 (here, a numbered paragraph) are part of Article VIII, entitled “Custody and Visitation.” Those rules require information sharing between the parents about extracurricular activities in the context of parenting time and access to the children. These “general rules” are not part of Article X and are properly read to bind each parent to an overall activity schedule for the children that does not interfere with the other parent’s parenting time with the children. The Child Support Standards Act (DRL §240 [1-b], Family Court Act §413) does not require the Court to allocate extracurricular activity expenses (Klauer v. Abeliovich, 149 AD3d 617, 53 NYS3d 37 [1st Dept 2017]). Unless the parents otherwise agree, or unless a court orders as a discretionary add on under DRL §240 (1-b) (f) or Family Court §413 (1) (f), extracurricular activities should be paid from basic child support (Michael J.D. v. Carolina E.P., 138 AD3d 151, 25 NYS3d 196 [1st Dept 2016]). The judgment of divorce is silent about extracurricular activities (meaning that no paragraph “f” add on was ordered). The language Respondent relies upon on page 21 of the parties’ agreement shows that the parties waived having a court engage in the discretionary analysis that might have brought extracurricular activities into the child support payment scheme for this family. Therefore, the source of obligation for the parents to share those expenses must be found in the April 12, 2016 agreement. If no such obligation exists there, then extracurricular activities are not subject to proration. A matrimonial action stipulation of settlement Ais a contract subject to principles of contract interpretation. Where…the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence (Rainbow v. Swisher, 72 NY2d 106, 110, 531 NYS2d 775, 777 [1988] [citations omitted]; see also, Micciche v. Micciche, 62 AD3d 673, 879 NYS2d 502 [2d Dept 2009]; Colucci v. Colucci, 54 AD3d 710, 864 NYS2d 67 [2d Dept 2008]). The Court must interpret the parties contract consistent with the parties expressed language and may not rewrite a contract under the guise of interpretation (Rodolitz v. Neptune Paper Prods., 22 NY2d 383, 292 NYS2d 878 [1968]). The Findings of Fact interpreted the Agreement to require the Respondent to pay 57 percent of, in essence, any extracurricular activity in which either parent enrolled a child. In addition, by the same token, that interpretation requires Petitioner to pay 43 percent of, in essence, any extracurricular activity in which either parent enrolled a child. This interpretation establishes a blank check for either parent to use or abuse. That interpretation contravenes the parties’ expressed intent to manage prudently add-on expenses as indicated, for example, by (a) furnishing an annual cap on the Respondent’s tutoring expense liability (Agreement, at 17, Article X, 6); (b) requiring the Respondent’s consent to the selection of summer camp — where his prorated share is only 50 percent, not 57 percent (Id.) — and (c) encouraging of the children to visit grandparents in two different states “which will reduce the cost of summer camp and child care” (Agreement at 18, Article X, 6). Nowhere in the April 12, 2016 agreement is there an express obligation of the Respondent (or Petitioner) to pay for extracurricular activities. The language from what is numbered paragraph 10 of Article X (quoted above as paragraph 3 on page 21) is unavailing. That language plainly says, and is properly interpreted to mean, that any of the listed categories of expenses and all other expenses are payable only “as more particularly described in” Article X. In other words, this paragraph of the agreement signals that the obligation to pay and division of payment responsibility must be found elsewhere in the parties’ agreement. Extracurricular activity payments are not found elsewhere in the parties’ agreement, and the Petitioner’s exhibit setting forth proof of the expenses does not guide the court to such a promise anywhere in the agreement. Thus, properly understood, the Respondent’s “consent” would mean the Respondent’s agreement to modify the April 12, 2016 agreement which is covered in Article XXXII and requires a “writing duly subscribed and acknowledged with the same formality as this Agreement” (Agreement at 50, Article XXXII, 1). No such writing is in evidence before the Support Magistrate, and no other sort of agreement or acquiescence suffices (Matter of English v. Smith, __ AD3d __, __ NYS3d __, 2019 NY Slip Op 04939 [2d Dept June 19, 2019]). Based on the foregoing, no Order (and no agreement) requires either party to pay for their children’s extracurricular activities. As such, enforcement against Respondent of a duty to pay for the horseback riding cannot stand without Respondent voluntarily undertaking the obligation which Respondent did not. Therefore, the Objection to the unconsented-to horseback riding expense is GRANTED. Even if the judgment of divorce and/or April 12, 2016 agreement are read to impose an obligation on the parents to share extracurricular activity expenses, horseback riding, at least in this case, may not be an extracurricular activity. The Child Support Standards Act, whether at Domestic Relations Law or Family Court Act, does not use the term extracurricular activity, so, obviously, the Act does not define “extracurricular activity.” The parties’ April 12, 2016 agreement does not define the term. No evidence was offered below about how the non-school related horseback riding is an add-on (or extra) to the curriculum of the child’s schooling. On this alternative basis, therefore, the Respondent’s Objection to prorating the horseback riding expense is granted. 3 Respondent’s third objection is to the untimeliness of billing and unfair surprise. The Support Magistrate resolved this issue favorably to the Respondent by noting that the late billing and confusion over amounts of credits made Respondent’s non-payment a non-willful violation as opposed to a willful violation. A party has a right to file objections only to those portions of a support magistrate’s order that aggrieve the party AFamily Court Act §439 (e) provides that an aggrieved party’s specific written objections to the final order of support of the Support Magistrate must be submitted within 35 days after the mailing of the order to such party (Matter of Sannuto v. Sannuto, 21 AD3d 901, 901, 800 NYS2d 601, 602 [2d Dept 2005]). Because the CPLR applies to Family Court matters of procedure except where contrary Family Court Act language appears (Family Court Act 165 [a]), CPLR 5511 is binding on the issue of what is an aggrieved party (Forbus v. Stolfi, 99 NY2d 642, 760 NYS2d 92 [2003]). Here, the matter of the late billing and unfair surprise was resolved favorably to Respondent, so the Objections related to late billing and unfair surprise are DENIED in their entirety. 4 Respondent objects to handwritten day care receipts. This, in essence, is a challenge to the credibility of the evidence before the Support Magistrate to whose credibility determination this Court must give deference (Matter of Rolko v. Intini, 128 AD3d 705, 9 NYS3d 101 [2d Dept 2015]). This Court has independently reviewed the receipts (Petitioner’s Exhibit 1) and the Findings of Fact the Support Magistrate issued. The Support Magistrate acted properly in accepting those receipts that the Respondent left unrefuted. Therefore, this branch of the Objections is DENIED in its entirety. SUMMARY Based on the foregoing, the Objections are GRANTED, in part. The Support Magistrate correctly found that the Respondent was due a credit of $719.38. The Support Magistrate properly found that Respondent owed $159.21 in medical expenses, which this Court calculates to reduce the Respondent’s credit to $560.17. The Support Magistrate correctly found that Respondent owed $464.27 in optical expenses which this Court calculates to reduce further the Respondent’s credit to $95.90. The net result of the Petition should have been to direct Support Collection Unit to apply a credit, not a charge, to the Respondent’s account. The credit should have been for $95.90 which fully enforces the parties’ obligations as those obligations were presented at the hearing before the Support Magistrate. Therefore, an order will issue simultaneously herewith directing the Support Collection Unit to enter a credit to the Respondent’s account for $274.60 to correct for the erroneous inclusion of the leisure activity expense of horseback riding AND to enter a credit to Respondent’s account for $95.90 which is what the net result of the case should have been. In total, the Support Collection Unit should reduce the obligations of Respondent by $370.50. To the extent that facts relied upon in this Decision on Objections are not expressly found by the Support Magistrate, this Court has relied on the record before it and has made those findings as permitted by Family Court Act §439 (e) (ii) and has taken judicial notice of documents in the Family Court (People v. Sanders, 112 AD3d 748, 976 NYS2d 205 [2d Dept 2013] [Court may take judicial notice of its own records and of records of the same court in different actions]). Dated: July 16, 2019 Central Islip, NY
