Imagine that you and your spouse recently finalized your divorce.  There were children born of the marriage who go to summer camp, participate in extracurricular activities, etc.  The question arises, which parent pays for these activities?  How about if you and your ex-spouse entered into a Property Settlement Agreement that specifically addresses the issue of payment, but you are unaware that the kids have already been enrolled in camp or activities and now you are just stuck with a bill to pay.  Are you still obligated to pay if you had no notice before the children were signed up and the expenses incurred?

These issues formed the basis of a new and interesting unreported opinion from the Appellate Division entitled Zenn v. Zenn, found here.  In the case, the father expressed a specific concern to the trial court that he wanted to have input into expenses incurred on behalf of the parties’ child before being compelled to contribute payment.  Specifically at issue was the child’s attendance at summer camp and enrollment in extracurricular activities (ultimately, violin lessons).  Heeding the father’s concern, the Court directed that both parties would be consulted prior to any expenses being incurred on behalf of the child.  Language to that effect regarding camp and extracurricular activities was thereafter drafted into the parties’ Property Settlement Agreement.  Notably, the father had agreed to pay for summer camp in 2004, but that there would be no such obligation unless the parties discussed future summer camp attendance. 

The mother subsequently filed a motion to compel the father to reimburse her for 50% of the child’s summer camp expenses for 2005-2007, as well as violin lessons.  The mother argued that the child attended the same camp as in 2004 and that she reached out to the father for consultation on both camp and music lessons, but allegedly received no response.  The father filed a cross-motion, seeking to have the court direct the mother to comply with the notice provisions in the PSA and to be held in violation of litigant’s rights for failing to previously comply in this regard.  The father specifically certified that the mother failed to consult with him on these issues, providing proof of several emails that he wrote to her to show his sufficient participation in the child’s life. 

The trial court, however, found unconvincing the father’s argument that he wanted the child to attend a camp with a greater Jewish affiliation since the child had already been going to her prior camp for several years.  The court also required the father to pay 50% of the violin expenses even though the mother provided little proof of full payment made by her. 

On the father’s appeal, the Appellate Division held that the trial court erred by disregarding the PSA language and compelling the father to contribute to the camp and violin lesson expenses without having received prior notice from the mother.  In so holding, the Appellate Division distinguished the case from that of Gotlib v. Gotlib, where the Appellate Division last year affirmed a trial court order requiring a father to reimburse the mother for 50% of the children’s unreimbursed medical expenses pursuant to a PSA provision requiring such payment.  The mother there similarly failed to consult with the father and seek his input on the need for medical care despite a PSA requirement to that effect.  A prior blog entry on Gotlib can be found here.

The Appellate Division highlighted the fact that, by contrast to the situation in Gotlib, where the mother had attempted to collect the unreimbursed medical expenses from the father through numerous letters that he ultimately ignored, here the mother provided no evidence of having given the father written notice of any kind prior to incurring the expenses at issue.  Even more interesting was the Appellate Division’s conclusion that, as opposed to payments towards unreimbursed medical expenses – deemed an "essential" benefit to the children – summer camp and music lessons were considered "highly discretionary ‘benefits’" that did not definitively fall within the child’s independent right of support from the parties as the natural parents.  Essentially, the Appellate Division concluded that the father had a right to rely on the bargained-for terms of the PSA regarding notice.  It reversed and remanded for further proceedings.

EDITOR’S NOTE: One must remember that this case is not reported and thus, not precedential.  In my opinion, the attempt to distinguish Gotlib is strained and intellectually inconsistent.  In addition, the child attended the same camp that was previously attended.  The trial judge seemed incredulous that he did not agree to the return to the same camp. 

There is a reported case called Finger v. Zenn and perhaps the father is the same person.  In that case, despite the fact the he was a dentist who went to a private college, he wanted to limit his responsibility for his children’s college to a state university. He was unsuccessful in that case,

That aside, there was a dispute in this case whether there was notice and mo rover, the agreement called for consent to not unreasonably be withheld.  Seemingly the trial court found the defendant to be unreasonable.   ERIC SOLOTOFF

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