In this post-judgment matrimonial action, plaintiff ex-wife seeks an order directing defendant ex-husband to pay, inter alia, child support and Cost of Living Adjustment ("COLA") arrears, half of summer school and college tuition, and health insurance costs required by the child's college. Defendant opposes the application and cross-moves for, inter alia, an order declaring the child constructively emancipated, terminating all child support and add-on obligations, finding plaintiff in breach of the parties' Stipulation of Settlement ("the Stipulation"), and for cost and sanctions. The issue of child support arrears is resolved as defendant paid the amount owed. The parties waived oral argument and the court now decides the applications on the written submissions alone.

The parties were married in February 1986 and have one child of the marriage, born May 7, 1990. On December 19, 1997, the parties entered the Stipulation, later incorporated by reference into the January 14, 1998 judgment of divorce, dividing marital property and future financial responsibilities. Under the Stipulation, defendant agreed to pay monthly child support to plaintiff in excess of the Child Support Standards Act ("CSSA") requirements. The agreed upon monthly child support arrangement required defendant to pay $1,417 through March 1, 1999, $1,617 through June 1, 2000, and $1,817 thereafter with an annually assessed cost of living increase or COLA until the child's emancipation. As of August 2009, the monthly child support [*2]payments with COLA were $2,335.99. The Stipulation defined an event of emancipation, thereby terminating defendant's child support obligation, as one of the following: the child attaining the age of twenty-two if pursuing a college degree, marriage of the child, entry of the child into the military, the child becoming fully employed, the child residing permanently away from the plaintiff other than for college, and death of the child.

Regarding health insurance coverage for the child, the Stipulation required plaintiff to obtain health insurance for the child through her employer. In the event that plaintiff's employer does not provide such coverage and defendant's employer does, defendant is required to maintain the child's health insurance. If neither parties' employer provides health insurance for the child, defendant is solely responsible for obtaining such insurance. The parties also agreed to equally share the cost of the child's tuition at Packer Collegiate Institute ("Packer"), a private school in Brooklyn, New York, and the cost of any sleepaway camp.

Prior to the marriage, both parties attended and graduated from college and law school: plaintiff from Brooklyn College and Hofstra Law School and defendant from Buffalo State College and the State University of New York at Buffalo Law School. Both plaintiff and defendant are licensed to practice law in the state of New York. From the age of three through high school, the child attended Packer where she was a National Merit finalist and inducted into the Cum Laude Society. The child is currently a sophomore at Brown University ("Brown"). Plaintiff paid the entirety of the child's freshman year tuition at Brown.

Plaintiff seeks arrears of $12,860.28 for defendant's alleged failure to pay the agreed upon COLA adjustments to the monthly child support payments from October 1, 2003 through January 1, 2009. Defendant alleges, and plaintiff concedes, that a $828.15 credit on the COLA arrears is owed for a previously made payment. Defendant also submits a copy of an October 7, 2009 check for $5,000, made payable to plaintiff's attorney for "w/o prejudice COLA."

Although plaintiff admits to accepting the $5,000 check as payment towards those attorney's fees sought in the instant application, Article XXIV of the Stipulation only entitles the moving party to attorney's fees after a favorable judgment is entered in a proceeding to enforce the Stipulation. The $5,000 check, therefore, cannot be considered as attorney's fees as judgment was not entered prior to plaintiff's acceptance of the check. The court will deem the $5,000 check as payment for COLA arrears as indicated.

Based on the COLA arrears detailed and verified in the sworn affidavits accompanying plaintiff's order to show cause and opposition papers, plaintiff has met her burden of proving such arrears. See Miller v. Miller, 18 AD3d 629, 630-31 (2d Dept 2005); Kent v. Kent, 233 AD2d 258, 260 (1st Dept 1996). Defendant's sole defense to the arrears alleged is that he is awaiting an accounting from a bank with respect to the child support checks cashed by plaintiff and inclusive of the COLA increase. The court has received no such documentation since this application was filed over six months ago in August 2009. Defendant's failure to contest the alleged arrears or to demonstrate good cause for failing to pay or make an application for relief from the COLA requirement does not necessitate a hearing and entitles plaintiff to judgment of $7,032.13. Domestic Relations Law ("DRL") § 244; see Gunsburg v. Gunsburg, 173 AD2d 232, 233 (1st Dept 1991)(holding that a hearing is only required where evidentiary facts are presented [*3]sufficient to create a triable issue of fact).

II. College Tuition

Even though the Stipulation equally allocated the child's Packer tuition among the parties, the Stipulation was silent on the payment of college tuition. Plaintiff now petitions the court for an order directing that the parties equally share the cost of the child's college tuition at Brown.

Although the terms of a separation agreement incorporated but not merged into a judgment of divorce operate as a contractual obligation binding on the parties (Gravlin v. Ruppert, 98 NY2d 1, 5 [2002]), the court retains the discretion to direct parents to contribute to the costs of their child's college tuition despite the agreement's silence. DRL § 240 (1-b)(c)(7); Otero v. Otero, 222 AD2d 328, 329 (1st Dept 1995)("Domestic Relations Law § 240(1-b)(c)(7) confers discretion to direct contribution for a child's college expenses in the absence of either special circumstances or the voluntary agreement of the parties"); Mrowka v. Mrowka, 260 AD2d 613 (2d Dept 1999). Such a determination by the court requires consideration of the circumstances of the case, the best interests of the child, and the interests of justice. DRL § 240 (1-b)(c)(7). The First Department has further specified that prior to directing such payment, the court must consider the parties' financial circumstances, the child's relationship with the parties, the child's academic endeavors and abilities, the type of college that would be suitable for the child, and the parents' educational background. Rosado v. Hughes, 23 AD3d 318, 319 (1st Dept 2005); Connolly v. Connolly, 83 AD2d 136, 140 (1st Dept 1981).

The relevant facts pertaining to the court awarding college expenses in this case are generally undisputed: the child is currently a sophomore at Brown University; since the age of three the child attended Packer Collegiate Institute, an elite private school from which most children go to college, many of them to Ivy League schools like Brown; and both parties are practicing attorneys having obtained their bachelor and law degrees. The parties are also in agreement in as much as neither argues that he or she is unable to afford the cost of college tuition. Plaintiff paid the entirety of the child's freshman year tuition and only now seeks reimbursement upon the child entering her sophomore year. Defendant has never argued that he is unable to pay half of the annual Brown tuition, or $19,024 per school year. Although defendant neglected to submit any financial documentation to the court, his continued ability to meet the substantial child support obligations, including $28,031.88 in child support in 2009 and half of child's annual tuition at Packer ^[FN1], allows the court to infer that he will be able to continue these payments. The court is unable to conclude, and it is not argued, that defendant would be incapable of paying half of the $38,024 in Brown tuition for the remaining three years of the child's college career. Based on these undisputed facts, the court now directs the parties to share equally the costs of the child's Brown tuition despite the absence of such an agreement. See Samuels v. Venegas, 126 AD2d 145, 151 (1stDept 1987). The parties should have anticipated that their child would attend an elite private college and now, based on the above mentioned factors, will share the cost of the Brown tuition for the child's sophomore, junior, and senior years. See Evans v. Evans, 55 AD3d 1079, 1083 (3d Dept 2008); Rosado, 23 AD3d at 318. The [*4]court, however, is unable to direct defendant to contribute to the child's freshman year tuition costs, the 2008-2009 academic school year, as child support relative to college costs may only be retroactively awarded to the date of application. See Mrowka, 260 AD2d at 613, citing DRL § 240(1); DRL § 236(B)(7)(a).

In an effort to cap his contribution to half the amount of the State University of New York ("SUNY") tuition, defendant argues that public universities produce just as many successful individuals as private universities. The court, however, is in no position to judge, as requested by defendant, whether there is "a real difference in quality between the education furnished by the public schools, on the one hand, and that which is available at the private school which the child in question attends." Cassano v. Cassano, 203 AD2d 563, 564-65 (2d Dept 1994). While recognizing that accomplished and intelligent individuals have attended public universities, including, as defendant notes, twelve Nobel Laureates from the City University of New York, the court will not engage in such a comparison. For the purposes of this case, Brown, one of the country's foremost and most selective institutions of higher learning, is a suitable college for this child who has excelled academically and whose parents enrolled her in an elite private school. Based on the child's attendance at a private secondary school and the elite college, there is no basis in the record for capping defendant's contribution at the SUNY tuition level. See Berliner v. Berliner, 33 AD3d 745, 748 (2d Dept 2006).

Defendant's arguments that his payment of child support in excess of the CSSA absolve

him of college tuition responsibilities, that plaintiff agreed to establish a college fund from

the child support payments, and that college tuition was purposefully excluded from the Stipulation are equally unpersuasive. Not only has defendant failed to present any evidence that the parties intended to exclude college tuition or establish a college fund, but it is well settled that the tuition component of college education is an item separate and unto itself from the basic need-based child support obligation. Otero, 222 AD2d at 329; see DRL § 240 (1-b)(c)(7).That defendant, under his own free will, agreed to opt out of the CSSA and pay more than statutorily required does not now entitle him to a credit on college tuition or absolve him from the responsibility of contributing to the child's college tuition costs as directed by the court.

III. Constructive Emancipation

Defendant's cross-motion seeking to have the child declared constructively emancipated based on the deterioration of the father-daughter relationship, and as a consequence relieving defendant of all future child support and tuition obligations, is also without merit. A determination that a child is constructively emancipated, based upon a child's egregious disobedience and the resulting alienation of a parent, allows the court to relieve a parent of any future child support obligations even if the support obligations were established in a separation agreement that was incorporated into a judgment of divorce. See Roe v. Doe, 29 NY2d 188, 193 (1971). The concept of constructive emancipation was first adopted by the Court of Appeals in the 1971 Roe v. Doe decision. In Roe, the court found "that where by no fault on the parent's part, a child voluntarily abandons the parent's home for the purpose of seeking its fortune in the world or to avoid parental discipline and restraint [that child] forfeits the claim to support.' " Id. Courts have further extended this doctrine to situations where the child remains under the authority of the custodial parent, but refuses to submit to the authority and control of the non-custodial paying parent. See Cohen v. Schnepf, 94 AD2d 783 (2d Dept 1983). However, where [*5]it is the parent who bears substantial responsibility for the breakdown of the relationship and communication with the child, the support obligation may not be vacated. See Lipsky v. Lipsky, 115 AD2d 361 (1st Dept 1985). The allegations in this case fall under the latter category of constructive emancipation based on the alleged breakdown in the relationship between the child and the non-custodial parent.

Defendant alleges that since the Summer of 2008, he has neither visited with nor spoken to his daughter despite taking significant steps to maintain a relationship. Over the last year and a half, defendant claims he sent twenty-six emails and made approximately one-hundred phone calls to the child in an effort to speak with her and arrange visitation. The majority of the emails were sent during the summer months of 2008 and 2009 with a complete absence of emails from October 30, 2008 through May 7, 2009. Of those emails attached for the court's review, all but three of those sent prior to October 30, 2008 were sent to the plaintiff as the intended recipient, often with the child carbon copied ( "cc") as an additional recipient, and regarded payment of child support or general compliance with the judgment of divorce. Defendant's October 21, 2008 email to the child indicates that since August 2008, the child had not communicated with defendant, leading defendant to conclude that the child no longer wished to speak or visit with defendant.

Defendant concedes that since the summer of 2008, his daughter has visited her step-brothers, defendant's children from a subsequent marriage, albeit only a handful of times. Defendant contends that each visit was meticulously coordinated so as to avoid any interaction between father and daughter. Defendant further acknowledges that he did not attend the parent events at Packer, claiming that he was not advised of or invited to such events, and he does not contend that he visited or attempted to coordinate a visit with the child during her freshman year at Brown.

Plaintiff opposes this application and classifies it as a calculated scheme to avoid defendant's child support obligation. Of particular note, plaintiff annexes to her papers an email sent from the child to defendant's current wife. This email indicates that there has been a strain on the father-daughter relationship, allegedly caused by defendant's own course of conduct, and that the child has been repeatedly hurt emotionally by defendant.Upon assessing a claim of constructive emancipation, the central role of the court is to determine the party primarily responsible for the rift between the parent and child. See generally Lipsky, 115 AD2d at 361; Cohen, 94 AD2d at 783. In circumstances where the child causes the alienation of the non-custodial parent, courts will relieve the parent of his or her child support obligations. In the case of Cohen v. Schnepf, for example, the court terminated the father's child support obligation based on the child's refusal to visit or communicate with the father for five years, the child legally changing his last name to that of his step-father without the knowledge or consent of the father, and the step-father threatening to assault the father upon the father's final visit with the child. 94 AD2d at 783. Comparatively, where it is the parent who abandons the child both emotionally and economically, courts will not terminate the obligation to support the child. In the Lipsky decision, the court found that the father was not relieved of his support obligation where he moved to Florida without providing the child with a forwarding address, did not invite the child to visit him in Florida, did not visit the child in New York or in the hospital when the child took ill, and refused to attend the child's Bar Mitzvah. 115 AD2d at 363. [*6]

The court is unable to conclude, based on the evidence presented, that defendant continually demanded communication or visitation with the child so as to permit a finding that it was the child who, without cause, abandoned the relationship. Although defendant has presented some evidence of his efforts to maintain a relationship with his daughter over the previous year and a half, the court is not persuaded that these efforts were sufficiently rebuffed by the child over a prolonged period to allow the court to find that the child is constructively emancipated. Cf. Cohen, 94 AD2d at 783 (finding that a child's admitted alienation of the father over a period of five years, wherein that time the father did not see the child, was sufficient to terminate the father's support obligation). Most notably, defendant's papers are conspicuously absent of any attempt to reach out to the child during her freshman year at Brown, although communication via email promptly resumed after the academic year terminated. Apparently defendant failed to understand that the burden of maintaining the relationship was on him as an adult and a parent, rather than on the child while she went through what is often one of the more difficult transition years in a young person's life.

Defendant also does not assert that any effort was made to visit his daughter at Brown throughout her freshman year. The only evidence regarding a planned visit between defendant and the child during the school year was an email sent from the child to defendant's current wife in response to an invitation to a birthday party for defendant in Connecticut. The child, in the midst of exams and lacking transportation, was unable to attend. It must be noted that Brown is located in Providence, Rhode Island — a mere three to four hour car ride from defendant's residence. However, despite Brown's proximity to defendant's residence, defendant failed to visit or present evidence that a visit to Brown was possible or contemplated. From this fact, it seems that the defendant is only inclined to visit the child when the effort needed to reach her is minimal. Such efforts do not indicate a father who is desperately trying to maintain a relationship with his daughter. The lack of any evidence demonstrating a serious effort by defendant to visit or establish a relationship with the child after she went to college does not allow this court to find that the child abandoned the relationship. See Alice C. v. Bernard G. C., 193 AD2d 97, 110 (2d Dept 1993); Lipsky, 115 AD2d at 363.

IV. Summer School Costs and Health Insurance

Although the Stipulation unequivocally requires defendant to contribute to the costs of "summer day camp" and for the parties to equally share the cost of "sleepaway camp," the court is unable to conclude that summer school is encompassed by the terms of the Stipulation. A separation agreement is a contractual obligation subject to the general principals of contract construction and interpretation. Graev v. Graev, 11 NY3d 262, 276 (2008). Generally, where the terms of a written agreement are clear, complete, and unambiguous, the agreement "must be enforced according to the plain meaning of its terms." Id., quoting Greenfield v. Philles Records, 98 NY2d 562 (2002). It is well established that "summer camp" and "summer school" carry two distinct meanings. See e.g. Rorie v. Woodmere Academy, 52 NY2d 200 (1981)(distinguishing between summer camp and summer school for zoning purposes). While the cited case does not involve a matrimonial matter or the interpretation of a separation agreement, it is dispositive for its annunciation of the differences in summer camp versus summer school. The court, based on the noted differences between summer camp and summer school and the plain meaning of the phrase "summer camp," cannot interpret the Stipulation as requiring defendant to contribute to [*7]the costs of the child's summer school program. See Goldman v. White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173, 176 (2008).

With respect to the Brown health insurance, the court cannot determine if such insurance is mandated by the school or may be waived if the student is covered by comparable insurance. This matter is therefore held in abeyance for the parties to submit further documentation to the court regarding Brown's health insurance requirements and the current policies available to the child under the parties' employers' plans.

V. Remaining Applications

All remaining applications brought by both parties are denied. Defendant failed to present actionable evidence that plaintiff breached the no molestation clause of the Stipulation. As such, the court will not award defendant damages, costs, or sanctions as requested. Defendant's request to lower the life insurance policy obligation from the $1 million required by the Stipulation to $75,000 is also denied as defendant has neither presented a change in circumstances warranting such action nor has he presented evidence that this provision was unfair or inequitable at the time of execution.

The claims for attorney's fees are denied. Although plaintiff is entitled to judgment on the COLA arrears, Plaintiff failed to demonstrate compliance with the demand and notice provisions of Article XXIV of the Stipulation as required prior to an award of counsel fees. See Reynolds v. Reynolds, 300 AD2d 645, 646-47 (2d Dept 2002). Defendant is also not entitled to counsel fees as he has not prevailed on any application. Furthermore, the court is not inclined to award counsel fees to either party in the discretion afforded under DRL § 238 based on the financial circumstances of the parties.

Plaintiff's applications to have defendant's law and driver's licenses suspended are moot. The court may only initiate proceedings to suspend a professional or driver's licenses in situations where the defaulting spouse has accumulated child support arrears greater than or equal to the support amount due for four months. DRL § 244-b, 244-c. Here, child support arrears have been satisfied and those COLA arrears owed do not amount to four months of child support or $9,343.96.

Plaintiff's application for an order directing defendant to disclose copies of any statements from any college savings plan or account for the benefit of the child is denied. The court has no evidence before it that such accounts were ever established. Furthermore, the court already directed defendant to pay half the costs of the child's college tuition and he may use the funds from these accounts to meet this obligation, if such accounts exist.

In light of the foregoing, it is

ORDERED that plaintiff's application for COLA arrears is granted; and it is further

ORDERED that the Clerk, upon service of this interim order with notice of entry, is directed to enter judgment in favor of plaintiff RE as against defendant SE for the sum of $7,032.13, as and for unpaid COLA arrears, together with costs and disbursements; and it is further

ORDERED that plaintiff and defendant are directed to each pay half the costs of the child's tuition at Brown University for the 2009-2010 (sophomore), 2010-2011 (junior), and 2011-2012 (senior) academic school years; and it is further

ORDERED that plaintiff's application for reimbursement for payment of the child's health [*8]insurance fee required by Brown is held in abeyance for the parties to submit the above requested information to the court within thirty (30) days; and it is further

ORDERED that the remaining applications by plaintiff and defendant are hereby denied.

This constitutes the decision and order of the court.

Matthew F. Cooper, J.S.C.