Under the instant motion sequence, Defendant moved by Order to Show Cause seeking inter alia counsel fees for fees incurred in connection with Plaintiff's failure to pay add-on expenses. Plaintiff cross-moved seeking this Court award him dollar-for-dollar credits for sums he advanced towards the parties' children's room and board expenses.

By Interim Decision & Order dated March 26, 2023, the Court found, in relation to the issue of child support add-on arrears, that, "as of May 2022, there was a balance of $27,103.89" due and owing. (NYSCEF Do. No. 44 at 10). The Court reserved decision on the issue of the total amount of arrears due and owing as Plaintiff had made substantial room and board payments for the parties children while they were at college. The Court attempted multiple times to have the parties enter into a Stipulation as to the amount due after consideration of Plaintiff's credits for room and board. Evidently, those attempts were futile.

In addition to the sum of add-ons due once the credits due to Plaintiff are accounted for, the Court also reserved decision on Defendant's request for counsel fees.

The Court directed supplemental briefing on the issue of counsel fees and the amounts [*2]paid by Plaintiff toward room and board. Plaintiff and Defendant submitted supplemental affirmations responsive to the Court's request. (NYSCEF Doc. No. 68, 78).

I. Dollar for Dollar Credits Due to Plaintiff

Following a court appearance on July 23, 2023, Defendant avers, "Plaintiff's arrears owed to Defendant [were] approximately $30,000.00." (Pl. Affm. at ¶6 [NYSCEF Doc. No. 68]). In response to this, Plaintiff "remitted a $30,000.00 check to Defendant." (Id.). Notably, this settled the arrears issue but did not resolve Plaintiff's entitlement to a credit for his previous room and board payments.

Plaintiff asserts he made the following payments toward the parties' children's room and board from 2019 to 2024:

Room and Board at University of Chicago: $6,310.00

Room and Board at Indiana University: $7,312.00

Room and Board at Williams: $19,762.00

Rent (paid to landlord during school): $10,500.00

Rent (paid to landlord during school): $14,310.00

Alleged Credit due to Plaintiff: $58,194.00

(See Pl. Ex. C [NYSCEF Doc. Nos. 81]; Pl. Ex. H [NYSCEF Doc. No. 41]; Pl. Ex. K [NYSCEF Doc. No. 16]; Pl. Ex. G [NYSCEF Doc. No. 40]).

Based upon the proofs before this Court, including the substantial documentary evidence offered by Plaintiff, this Court finds Plaintiff is entitled to a credit in the amount of $58,194.00 for his room and board payments. Importantly, the Court does not reduce this amount based on the arrears because the issue of arrears was resolved by Plaintiff's remittal of a $30,000.00 check which Defendant admits to.

II. Counsel Fees Due to Defendant

Defendant argues, notwithstanding Plaintiff's remittal of $30,000.00 for outstanding arrears, that she nonetheless should be entitled to fees because "there were considerable arrears outstanding, which took [Plaintiff] almost two years to pay after incurring thousands in legal fees." (Pl. Affm. at ¶6 [NYSCEF Doc. No. 68]).

Defendant's papers demonstrate that she has incurred $86,702.68 in counsel fees (inclusive of $500.00 outstanding). (Pl. Affm. at ¶ 7 [NYSCEF Doc. No. 68]).

"Where the parties have agreed to provisions in a settlement agreement that govern the award of attorney's fees, the agreement's provisions, rather than statutory provisions control." (Roth v Roth, 116 AD3d 833, 834 [2d Dep't 2014]). The parties' Stipulation's Default Provision provides,

" in the event that either party defaults with respect to any payment or any other obligation under this Agreement and said default is not remedied within fifteen (15) days after the sending of written notice pursuant to Article XV herein (specifying said default by reference to the section of this Agreement which has been breached and annexing proof of the breach, if any, and setting forth the relief or cure requested), the defaulting party agrees to indemnify the other party against or to reimburse him or her for any and all reasonable expenses, costs and attorney's fees resulting from or made necessary by the bringing of any suit, motion or other proceeding to enforce any of the terms, covenants or conditions of this agreement to be performed or complied with by the defaulting party or to enforce any of the other party's rights to recover any amount to be paid pursuant to this [*3]Agreement, provided such proceeding, suit or motion results in arbitrator's award, or in a judgment, decree or order against the defaulting party." (Pl. Ex. A at ¶¶13.1-13.2).

Here, the parties stipulated to a protocol for counsel fees in the event of an enforcement upon a party's default. Under the letter of the parties' Stipulation, Defendant is entitled to fees as the party that prevailed on this motion. Indeed, apart from child support, the Court found Plaintiff in breach of the parties' Stipulation's provisions concerning life insurance and equitable distribution. (NYSCEF Doc. No. 44). Thus, the Defendant, as the prevailing party, would be entitled to a sum of counsel fees in the amount of $86,702.68 under the terms of the Stipulation.

Nevertheless, the Court does not award this sum based upon the specific circumstances of this case. Specifically, the large sum of credits due and owing to Plaintiff. Given the parties' longstanding inability to compromise on these issues, and the relative financial positions of the parties, the Court finds it appropriate to reduce Defendant's entitlement against Plaintiff's credits. In applying these credits against the counsel fee award, Plaintiff's request for credits is resolved and these specific sums cannot be asserted as credits moving forward. Accordingly, Defendant is awarded a sum of counsel fees of $28,508.68 (Defendant's entitlement to fees less Plaintiff's accumulated credits).

III. Future Credits

In relation to the room and board credits due, the Father argues and requests throughout his papers that this Court permit him to reduce his basic child support obligation against the sums paid as and for his share of room and board expenses. (Pl. Not. Cross-Mot. at 1 [NYSCEF Doc. No. 3]; Pl. Affm. at ¶ 19 [NYSCEF Doc. No. 5]; Pl. Supplemental Affm. at ¶ 11 [NYSCEF Doc. No. 78]).

The parties' Stipulation explicitly contemplated the potential need for "judicial determination" to resolve the issue of how the payment for room and board may affect the basic child support obligation. (Pl. Ex. I at 7 [NYSCEF Doc. No. 14]). In resolving this issue, the Stipulation makes clear, "the parties acknowledge that there will be some reduction of Child Support in recognition of the fact that each parent may be paying room and board as each child enters college." (Id.).

The Father herein is obligated to pay $3,500.00 a month in basic child support based on one child being unemancipated. (Pl. Ex. I at 4 [NYSCEF Doc. No. 14]; Pl. Supplemental Affm. at 16 [NYSCEF Doc. No. 78]). The Father is also obligated to pay the pro-rata share of room and board for two of the parties' children. (Pl. Supplemental Affm. ¶ 13-14 [NYSCEF Doc. No. 78]; Pl. Ex. I at 6-7 [NYSCEF Doc. No. 14]). Notably, the eldest child is emancipated, and the youngest is not. (Pl. Supplemental Affm. ¶ 13 [NYSCEF Doc. No. 78]; Pl. Ex. I at 4 [NYSCEF Doc. No. 14]). Thus, if the Father were permitted to reduce all of his room and board payments from his basic child support obligation, he would be prejudicing the support for the youngest child by crediting payments exclusively for the benefit of eldest child against the funds meant solely for the youngest child welfare.

Logically such a prejudicial interpretation would be inappropriate. Indeed, it is also legally inappropriate,

The credit sought by the Father takes away from the portion of child support intended for the welfare of the other two children [. . .] to interpret the credit provision as negating the child support promised for each child in the preceding provision would be an untenable construction, and the absurd result we are admonished against producing. (Keller-[*4]Goldman v Goldman, 149 AD3d 422, 424-426 [1st Dep't 2017]).

Thus, the Father may reduce from his $3,500.00 basic child support obligation the sums he actually pays as and for his pro-rata share of the youngest child's room and board costs — not the eldest child. Accordingly, the branch of the Father's Cross-Motion requesting future room and board credits be used against his basic child support obligation is GRANTED IN-PART AND DENIED IN-PART as detailed herein.

This constitutes a decision and order of this Court.