COSTELLO v. COSTELLO

ORDERED that the judgment is modified, on the law, by adding to the twenty-first decretal paragraph thereof a provision limiting the defendant's obligation to reimburse the plaintiff for loans taken out by the parties' child, Jennifer, and/or the plaintiff in connection with Jennifer's college education to loans used for Jennifer's education prior to her reaching 21 years of age; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings in accordance herewith.

Since the trial court did not find credible the defendant's testimony that he was wrongly terminated from his employment as opposed to having voluntarily sought retirement, the court providently exercised its discretion in imputing income to the defendant higher than that claimed (see Rohrs v. Rohrs, 297 A.D.2d 317; Thomas v. DeFalco, 270 A.D.2d 277; see also Walker v. Walker, 289 A.D.2d 225, lv denied 99 N.Y.2d 503). Contrary to the defendant's contentions, the court considered the necessary statutory factors to fashion an equitable maintenance award, including, among other factors, the plaintiff's reasonable needs, the pre-divorce standard of living, the financial circumstances of the parties, the ability of the plaintiff to become self-supporting, the duration of the marriage and the age of both parties (see Domestic Relations Law § 236[B] [6]; Hartog v. Hartog, 85 N.Y.2d 36). For the same reasons, the court's direction to the defendant to provide for health insurance for the plaintiff until she reached the age of 65 was also proper (see Domestic Relations Law § 236[B] [8] [a]).

Considering the circumstances of the respective parties and the best interests of the parties' child, Jennifer, the court providently exercised its discretion in directing the defendant to contribute to Jennifer's private college education by reimbursing the plaintiff for loans taken out in connection with Jennifer's schooling at Syracuse University (see Manno v. Manno, 196 A.D.2d 488; Domestic Relations Law § 240[1-b] [c] [7]). However, a parent cannot be directed to contribute toward the college education of a child who is 21 years of age or older, unless that parent has voluntarily agreed to do so (see Youseff v. Cantelmo, 278 A.D.2d 489). Thus, to the extent that these loans cover education for Jennifer beyond October 23, 2002, the date upon which she reached 21 years of age, the court erred in directing the defendant to pay back all of the loans in connection with the daughter's senior year of college, the 2002-2003 school year. Accordingly, we remit the matter to the Supreme Court, Putnam County, for a determination of the defendant's proper pro rata obligation.

The trial court did not find credible the defendant's testimony regarding his inability to access the documentation necessary to prepare the joint 1993 income tax return until 1996, nor his testimony regarding the plaintiff's refusal to sign the return for a period of time thereafter. The court did, however, find that he was the party who made the financial decisions regarding the income tax return, and the record demonstrates that he earned virtually 100% of the parties' income in 1993, and that he met and negotiated with the Internal Revenue Service on the parties' joint behalf regarding the tax liability without notifying the plaintiff. Accordingly, the trial court providently exercised its discretion in directing the defendant to pay any tax payments, interest, and penalties due in connection with the parties' failure to timely file the 1993 joint income tax return (see Fiedler v. Fielder, 230 A.D.2d 822; Baker v. Baker, 188 A.D.2d 710).

The defendant's remaining contention with respect to the equitable distribution of the marital residence is without merit.

KRAUSMAN, J.P., TOWNES, MASTRO and RIVERA, JJ., concur.