Matter of Perlman v. Kolodny: Clarifying Income Imputation and Tuition Contribution under Family Court Act

Introduction

In Matter of Perlman v. Kolodny (2025 NYSlipOp 01811), the Appellate Division, Second Department, addressed two interrelated issues in a post-divorce support proceeding: (1) the extent to which a parent’s income may be “imputed” for child support purposes when that parent underreports or under-earns, and (2) the circumstances under which one parent must contribute to a child’s private school tuition when the original stipulation of settlement allocated tuition obligations in a specific way. The parties, Joseph Y. Perlman (the father) and Miriam S. Kolodny (the mother), share three children. After a 2013 stipulation incorporated into their divorce judgment, the mother had sole residential and legal custody; the father paid basic support for three children plus a flat $375/month tuition contribution. Over time, the oldest child moved into the father’s household, prompting him to seek: a downward modification of his basic support payments for the younger children, an award of basic support from the mother for the oldest child, and a contribution by the mother toward that child’s private school tuition.

Summary of the Judgment

Following a hearing before a Support Magistrate, the court:

Imputed an annual adjusted gross income of $45,360 to the mother and $227,793.19 to the father.
Directed the mother to pay basic support of $657.84 per month for the oldest child, plus $25,736.84 in retroactive support at $200 per month.
Denied the father’s request to allocate any portion of the $375 tuition add-on to the mother for the oldest child, and denied a reduction of his $375 obligation for the two younger children.

The Family Court reviewed the father’s objections, corrected a clerical error, and otherwise affirmed the Support Magistrate’s order. On appeal, the Second Department (1) dismissed the appeal from the amended order as non-appealable, and (2) affirmed the Family Court’s denial of the father’s substantive objections.

Analysis

1. Precedents Cited

Several key precedents guided the court’s decision:

Matter of Goldstein v. Lika, 226 AD3d 1016 (2023) – affirmed broad discretion to impute income based on earning capacity and related factors.
Matter of Coughlan v. Coughlan, 218 AD3d 569 (2023) – emphasized deference to Support Magistrate’s credibility findings and imputation decisions.
Matter of DiSapio v. DiSapio, 225 AD3d 859 (2023) – confirmed that imputation may rest on past employment, education, or non-monetary support.
Family Ct Act § 439(e) – provides that only a “final order of a support magistrate, after objections … have been reviewed by a judge” is appealable.
Barrezueta v. Barrezueta, 230 AD3d 459 (2023) – clarified that stipulations “incorporated but not merged” are true contracts, subject to standard principles of contract interpretation.
Strugatch v. Strugatch, 135 AD3d 848 (2016) – held that a tuition add-on must be interpreted strictly according to the parties’ agreement when unambiguous.
Matter of Santman v. Schönfeldt, 206 AD3d 812 (2022) – upheld the trial court’s discretion to set retroactive support payment rates considering financial circumstances.

2. Legal Reasoning

The court’s reasoning unfolded in several steps:

Appealability of the Amended Order: Under Family Court Act § 439(e), only a “final order” post-objections is appealable. The father did not object to the clerical changes in the amended order, so the appeal from that order was dismissed.
Imputing Income to the Mother: The Support Magistrate imputed an annual income of $45,360 to the mother based on her employment history and earning capacity. Citing Goldstein, Coughlan, and DiSapio, the court held that imputation is within the magistrate’s discretion so long as the record supports the figure and the magistrate’s credibility findings are accorded deference.
Retroactive Support Payment Schedule: The Family Court and Second Department agreed that a $200/month schedule was reasonable, given the parties’ financial circumstances and Santman.
Interpretation of the Tuition Add-On: The father argued that his $375/month obligation represented $125 per child, entitling him to a sliding adjustment once the oldest child changed residences. Relying on Barrezueta and Strugatch, the court treated the stipulation as a clear, unambiguous contract. No clause required the mother to assume any portion of the oldest child’s tuition, and the father’s obligation remained a flat $375 until either a salary increase or application for a child’s emancipation triggered a recalculation.
Modification for Change in Circumstances: To modify child support, the moving party must show a “substantial change in circumstances” under Family Court Act § 451(3)(a). The father failed to demonstrate that shifting one child’s residence and his voluntary payment of tuition at a school selected by him rose to that level. The court also found no evidence that the child’s needs justified forcing the mother to contribute.
Bias Claim: The father alleged magistrate bias. Finding no record evidence of unfair treatment, the court deemed the claim both unpreserved and without merit.

3. Impact

This decision reinforces two important principles in New York family law:

Income Imputation Remains Discretionary: Courts will continue to impute income based on a party’s demonstrated earning capacity and lifestyle, provided the Support Magistrate’s findings enjoy appellate deference.
Tuition Add-Ons Are Strictly Contractual: When a stipulation is “incorporated but not merged,” its plain language controls. Absent explicit cost-sharing language, courts will not rewrite the parties’ bargain to accommodate evolving circumstances.

Future litigants should draft settlement stipulations with clear formulas for tuition obligations in scenarios of custody changes, salary fluctuations, or a child’s emancipation.

Complex Concepts Simplified

Income Imputation: When a parent earns little or underreports income, the court can “impute” a higher earning capacity based on work history, education, or non-cash benefits. It treats that imputed amount as actual income for support calculations.
Retroactive Support: Money owed from the date a support petition was filed to the date it is decided. Courts can set payment schedules (e.g., $200/month) to ease financial burdens.
“Incoporated but Not Merged” Stipulation: A private agreement folded into a divorce judgment. It remains a standalone contract, subject to normal rules of contract interpretation, rather than a decree fully subsumed by the judgment.
Tuition Add-On (“Add-Ons”): Extra child support payments covering specific costs (private school tuition, medical expenses). Unlike basic support, add-ons require clear contractual or statutory authority for modification.
Substantial Change in Circumstances: A legal threshold that justifies reopening support orders. Mere changes in residence or voluntary payments typically do not qualify unless they drastically alter needs or affordability.

Conclusion

Matter of Perlman v. Kolodny reaffirms the Family Court’s authority to impute income based on a parent’s potential earning capacity and underscores that tuition add-ons in post-divorce settlements are governed strictly by the contract’s text. The decision highlights (1) the deference given to Support Magistrates on credibility and imputation determinations, (2) the necessity for clear drafting of add-on provisions in marital settlement agreements, and (3) the high bar for demonstrating a substantial change in circumstances to modify tuition obligations. As a result, this case will serve as a guiding precedent on the interplay between income imputation and contract-based tuition contributions in New York child support jurisprudence.