I am often asked whether there should be a reduction in child support in a situation where the child is residing away from home at college and the parent paying child support is also contributing to the cost of college expenses. Since the child support is generally paid to provide shelter and food for the child, if a parent is paying for a room and board at college, the payor parent should only be paying for shelter and food at a single location. The case law holds that, in the absence of an agreement to the contrary, any such reduction or credit is discretionary to the court.
In Pistilli v Pistilli, 53 A.D.3d 1138 (4 Dept. 2008) plaintiff moved to modify the judgment by “[d]istributing the actual and anticipated college education costs associated with the parties’ children,” specifically the parties’ daughter, between the parties. Pursuant to an oral stipulation of the parties that was incorporated but not merged into the judgment of divorce, the parties “agreed to contribute to [their children’s college expenses] as they are then financially able.” The Appellate Division held that the court erred in failing to consider the defendant’s maintenance obligation in calculating the percentage of the defendant’s contribution to the daughter’s college expenses. After subtracting from the defendant’s income the amount of taxable maintenance paid to the plaintiff as indicated on the parties’ respective 2005 tax returns, which were used by the court in determining the parties’ respective incomes, it concluded that the defendant’s percentage of the combined parental income was 64% rather than 80%, and thus defendant’s pro-rata share of the daughter’s college expenses was reduced from 80% to 64%. The Appellate Division rejected the defendant’s contention that the court erred in determining that he was entitled to a credit against his child support obligation only in the amount of his pro-rata share of the daughter’s college meal plan, holding that credit against child support for college expenses is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries. Because the plaintiff had to maintain a household for the daughter during the daughter’s school breaks and weekend visits, it could not be said that defendant was entitled to a credit for the daughter’s rooming expenses. Nevertheless, inasmuch as the Appellate Division reduced the defendant’s pro-rata share of the daughter’s college expenses from 80% to 64%, the defendant’s child support credit based on the college meal plan had to reflect that reduction and it modified the order accordingly.