Opinion
July 12, 1991
Appeal from the Oneida County Family Court, Flemma, J.
Present — Denman, J.P., Boomer, Balio, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs and matter remitted to Oneida County Family Court for further proceedings, in accordance with the following Memorandum: In the absence of an agreement obliging respondent father to provide for the educational support of his children beyond their twenty-first birthday, Family Court erred in directing respondent to contribute to the private college education expense of his two sons beyond the date of their twenty-first birthdays (see, Breslaw v Breslaw, 156 A.D.2d 627, 628; Morrissey v Morrissey, 153 A.D.2d 609, 612; Hirsch v Hirsch, 142 A.D.2d 138; Hoffman v Hoffman, 122 A.D.2d 583, 584, lv dismissed 69 N.Y.2d 706). The court further erred in concluding that respondent was obligated for those educational expenses incurred prior to the children's twenty-first birthdays without making a finding that "special circumstances" warranted the imposition of such an obligation (see, Samuels v Venegas, 126 A.D.2d 145, lv dismissed 70 N.Y.2d 692; Hoffman v Hoffman, 122 A.D.2d 583, supra, modfg on other grounds 130 Misc.2d 701; Kaplan v Wallshein, 57 A.D.2d 828) and in directing him to reimburse petitioner for educational expenses incurred prior to the date of filing of the instant petition (see, Family Ct Act § 449; Matter of Aiken v Aiken, 115 A.D.2d 919; Matter of Hackett v Haynes, 70 A.D.2d 1051).
Respondent concedes that the record is sufficient to permit this Court to make its own findings, and insofar as the issue of "special circumstances" is concerned, we conclude that petitioner demonstrated that such circumstances exist. Respondent graduated from a private college. Petitioner is a registered nurse, which suggests the successful completion of some post-secondary education. Both children have achieved very good academic records at their respective colleges, and respondent testified that he had no objection to the colleges selected by either son. Further, the record supports Family Court's determination that respondent has the financial ability to contribute to his children's education. We cannot determine from the record the amount of educational expense that should be allocated from the date of the petition (February 20, 1990) to the date each child reached twenty-one years of age. Accordingly, we remit the matter to Family Court for further proceedings and a determination, consistent with this decision, of respondent's obligation to provide for the educational support of his sons.